Judgment G.S.Chaubey, J. 1. Criminal Appeals 198. 262 and 263 of 1985 having arisen out of a common judgment and order of conviction recorded by the IInd Additional Sessions Judge of Madhubani in Sessions Trial No. 35 of 1980/36 of 1983 are being disposed of by this judgment. All the six appellants in criminal appeal No. 198 of 1985 have been convicted and sentenced under Sections 147. 323 and 426 of the Indian Penal Code to undergo rigorous imprisonment for two years, one year and three months respectively. Besides appellant No. 6 Hiralal Choudhary in the said appeal has been further convicted and sentenced under Section 325 of the Indian Penal Code to undergo rigorous imprisonment for three years. Both the appellants in criminal appeal No. 262 of 1985 and the sole appellant in criminal appeal No. 263 of 1985 have been convicted under Sections 148, 324, 302 and 426 of the Indian Penal Code. They have been sentenced to undergo imprisonment for life for the offence under Section 302 of the Indian Penal Code, besides undergoing rigorous imprisonment for three years, three years and three months respectively for the offences under Sections 148, 324 and 426 of the Indian Penal Code. Sole appellant Kamal Nath Choudhary in criminal appeal No. 263 of 1985 has been further convicted and sentenced to undergo rigorous imprisonment for five years under Section 307 of the Indian Penal Code. The sentences of the appellants in all the appeals have been directed to run concurrently. 2. The prosecution case, as unfolded in the first information report (Ext. 10) of one Uma Kant Jha of village Shahpur within Pandaul Police Station in Madhubani district recorded at the Surgical Ward of Madhubani Sadar Hospital on 11.9.1979 at 10.45 a.m., is that on 9.9.1979 at about 4 or 5 in the evening he had gone to his paddy field when he noticed that about 15 to 20 heads of she- buffalo were grazing on his Kharhore situated nearby and his co-villagers Kamal Nath Choudhary, Nagendra Choudhary, Bul-bul Choudhary, Bachha Choudhary, Kamp Narayan Choudhary, Hari Choudhary, Kali Choudhary, Hiralal Choudhary (the appellants herein) and some others were present there with weapons in their hands and getting his Kharhore grazed by those animals. Consequently, he went there and protested. That led to some altercation between them and the accused persons threatened him and asked to go away. Consequently, he went there and protested. That led to some altercation between them and the accused persons threatened him and asked to go away. When he started driving away the she- buffalo of Kamal Nath Choudhary, the latter struck on his head with farsa which he was wielding. When he raised alarm, his two sons Jeewach Jha (PW 8) and Sarjug Jha (deceased) arrived there. They were greeted with blows by means of the weapons the accused were carrying. The assailants inflicted injuries on the persons of the informant and his two sons named above. When they fell down, appellants Kamal Nath Choudhary and Hari Choudhary put a lathi on the neck of the deceased Sarjug Jha and started pressing the same. In the meantime, PW 6 Jadubeer Jha, a nephew of the informant arrived there on a bicycle. When he intervened, he was assaulted by appellants Bachha Choudhary and Kampa Narayan Choudhary by means of bhala and garasa. They also relieved PW 6 of his bicycle and wrist watch, besides a bag containing dhoti, a lungi and some other articles. The injured lost their senses at the spot. They were taken to Madhubani Sadar Hospital by the co-villagers. Injured other than deceased Sarjug Jha were treated there. As the condition of deceased Sarjug Jha was very critical, he was immediately transferred to Darbhanga Medical College and Hospital at Laheriasarai where he succumbed to the injuries on 11.9.1979. It appears that in course of investigation complicity of as many as nine others also came to light and they were put on trial alongwith these appellants. 3. On such facts, appellants Kamal Nath Choudhary, Hari Choudhary, Kamp Narayan Choudhary alias Kampa Choudhary and bachha Choudhary, besides co-accused Bulla Choudhary and Lutan Choudhary were charged under Section 302 of the Indian Penal Code for committing the murder of deceased Sarjug Jha. They were also charged under Sections 148 and 324 of the Indian Penal Code. All the appellants were also charged under Sections 307 and 426 of the Indian Penal Code for attempting to commit murder of Uma Kant Jha and committing the mischief. Appellants Nagendra Choudhary, Bulbul Choudhary, Hari Choudhary and Sarwan Choudhary, besides seven others named Bishwanath Choudhary. Sarjug Choudhary, Tirpit Choudhary, Mode Narayan Choudhary, Hitai Choudhary, Bhogi charged under Sections 147 and 323 of the Indian Penal Code. Appellants Nagendra Choudhary, Bulbul Choudhary, Hari Choudhary and Sarwan Choudhary, besides seven others named Bishwanath Choudhary. Sarjug Choudhary, Tirpit Choudhary, Mode Narayan Choudhary, Hitai Choudhary, Bhogi charged under Sections 147 and 323 of the Indian Penal Code. Appellant Hira Choudhary was further charged under Section 325 of the Indian Penal Code for voluntarily causing grievous hurt to Umakant Jha, and appellant Sarwan Choudhary and Hira Choudhary, besides co-accused Raj Kumar Choudhary were charged under Section 379 of the Indian Penal Code. The accused persons including the appellants denied the charges and pleaded false implication due to enmity. 4. The defence version of the appellants and other accused persons was that on the same day at about the same time co-accused Mod Narayan Choudhary and Raj Kumar Choudhary son of appellant Nagendra Choudhary were grazing their cattle on a parti piece of land The appellant Nagendra Choudhary also went there and was having a talk with his son Raj Kumar Choudhary. In the meantime, the prosecution party including the informant and two injured and some prosecution witnesses arrived there and started assaulting them. In course of such assault appellant Nagendra Choudhary was grievously injured. Co-accused Mod Narayan Choudhary also got injured. They were rushed to Madhubani Sadar Hospital on the same day, wherefrom appellant nagendra Choudhary was transferred to Darbhanga Medical College Hospital at Laheriasarai, in view of his critical condition. There he was treated and operated upon and, thus, his life was saved. In other words, the defence of the accused persons including the appellants is the total denial of the occurrence in the manner alleged by the prosecution. 5. To prove the charges the prosecution as well as the defence adduced evidence, both oral and documentary. On consideration of such evidence, the learned Additional Sessions Judge who tried the case, acquitted nine of the accused persons, namely, Bulla Choudhary, Lutan Choudhary, Bishwanath Choudhary, Sarjug Choudhary, Tripti Choudhary, Mod Narayan Choudhary, Hitai Choudhary. Bhogi Choudhary and Raj Kumar Choudhary. He has, however, convicted and sentenced the present appellants in the manner indicated earlier. Against their such conviction and sentences these appeals have been preferred. 6. Before proceeding to dispose of these appeals it need be mentioned that when the appeals were taken for hearing on 29.1.1979. Bhogi Choudhary and Raj Kumar Choudhary. He has, however, convicted and sentenced the present appellants in the manner indicated earlier. Against their such conviction and sentences these appeals have been preferred. 6. Before proceeding to dispose of these appeals it need be mentioned that when the appeals were taken for hearing on 29.1.1979. a petition was filed on behalf of the appellants in criminal appeal No. 198/85 informing that appellant No. 5 Nagendra Choudhary in the said appeal was already dead. No relative of the said appellant came forward for leave of the Court to prosecute the appeal on his behalf. Therefore, appellant No. 5 having already died during the pendency of the appeal, the appeal against him stood abated. 7. Learned counsel appearing for the appellants in all the appeals has submitted that even though the occurrence had taken place in the evening on 9.9.1979, the first information report was lodged after two days on 11.9.1979. Therefore, there was considerable delay in lodging of the first information report without satisfactory explanation for the same. He has further submitted that in the night of the occurrence itself a Judicial Magistrate had gone to the Sadar Hospital at Madhubani and recorded the so-called dying declaration of informant Uma Kant Jha and in course thereof he had named only one of his assailants, namely, the appellant in criminal appeal No. 263/85. Subsequently he named as many as nine persons in the first information report, who are the appellants before us; and when the witnesses including the informant came to be examined by the investigating officer, they further implicated some other persons. Therefore, their evidence regarding the participation of the accused persons including the appellants is not only inconsistent but betrays a clear desire on their part to implicate as many persons as possible due to enmity. He has further submitted that the witnesses examined by the prosecution to prove the charges against the appellants are related inter se and inimical to the accused persons. They have suppressed material facts including the injuries to appellant Nagendra Choudhary to the extent of denying his presence even at Madhubani Sadar Hospital where the informant and other injured had been taken. He has also submitted that there is no specific evidence as to who were the authors of the fatal wounds on the person of the deceased. They have suppressed material facts including the injuries to appellant Nagendra Choudhary to the extent of denying his presence even at Madhubani Sadar Hospital where the informant and other injured had been taken. He has also submitted that there is no specific evidence as to who were the authors of the fatal wounds on the person of the deceased. At least, there is no specific allegation with respect to the appellants in criminal appeals No. 262 and 263 of 1985, namely, Kamp Narayan Choudhary, Bachha Choudhary and Kamal Nath Choudhary. Therefore their conviction under Section 302 of the Indian Penal Code was not warranted. 8. There is preponderance of evidence on record that in course of an occurrence of assault that took place at a Kharhore situated north-west of village Shahpur in the evening on 9.9.1979 four persons of the prosecution side including informant Uma Kant Jha had sustained severe injuries and one of them namely, deceased Sarjug Jha died of the said injuries at Darbhanga Medical College and Hospital at Laheriasarai whereto he had been transferred for treatment. PW 15 Doctor Vikas Chandra Sahai Verma of Darbhanga Medical College had performed autopsy on the dead body of deceased Sarjug Jha on 12.9.1979 at 1.30 p.m. and found as many as eleven injuries as noted below : (1) An abrasion 3" x 1/12" on right side of the chest with bruising of the underlying tissues. (2) Bruise with abrasion 5" x 1" on right arm at the outer aspect directed obliquely downwards towards the front. (3) A semicircular stitched wound over right side of the head measuring 3" x 1/2" x up to skull bone. The scalp tissues were found bruised and lacerated. There was a big epidural haematoma covering the underlying brain area (4) A stitched wound 3-1/2" x 1" x upto skull bone over middle part of the head. The underlying scalp tissue; brain was found compressed by an epidural haematoma and the brain was found congested. (5) A stitched wound 3" x 3/4" x upto skull bone on the left side front of the head with brusing of the scalp tissues and several epidural clots of blood on a portion of the brain underneath. (6) A stitched wound 1" x 3/4" x upto skull bone on right and back of the head. A portion of the occipital bone was found having a partial cut thereon. (6) A stitched wound 1" x 3/4" x upto skull bone on right and back of the head. A portion of the occipital bone was found having a partial cut thereon. (7) A stitched wound 2-1/4" x 1" x upto bone on the upper part of the right clieck below the right eye. There was a cut in the maxilla in the upper part extending to the inferior border of the right orbit. (8) A penetrating wound 1 x 1/2" x 1" on the outer part of the right eye-brow. The weapon used had cut the skin, muscles and other tissues and had entered the outerside of right orbit after cutting the bones. (9) A stitched wound placed horizontally on upper part of the nose measuring 1/2" x 1/4" x upto bone. The nasal bone was found partially cut. (10) One incised wound 1/2" x 1/2" x 1/4" on the base of the palmer aspect of the right thumb. Metacarpal bone of the thumb was found partially cut. (11) A stitched wound 1" x 1/2" x 1/2" above the left knee. The skin and the subcutaneous tissues were found cut. 9. In the opinion of the doctor who performed the autopsy, all those injuries were of ante-mortem in nature. While injuries against serial Nos. (1) to (5) were caused by some hard and blunt substance like lathi those against serial Nos. (6), (7), (9), (10) and (11) were caused by some sharp-cutting weapon like farsa. The injury against serial No. (8) was caused by some sharp pointed weapon, such as bhala. Injuries (3), (4) and (5) were dangerous to life in ordinary course of nature. The doctor has said that the death of the deceased had occurred due to concussion, compression, haemorrhage and shock as a result of all the abovementioned injuries, especially those against serial Nos. (3), (4) and (5) which were opined to be dangerous to life. The death had occurred 18 to 36 hours prior to the post- mortem. Ext. 4 is the inquest report which shows that the death of the deceased had taken place at Darbhanga Medical College and Hospital at its Surgical wards on bed No. 60. PW 12 had held the inquest in presence of witnesses. 10. The death had occurred 18 to 36 hours prior to the post- mortem. Ext. 4 is the inquest report which shows that the death of the deceased had taken place at Darbhanga Medical College and Hospital at its Surgical wards on bed No. 60. PW 12 had held the inquest in presence of witnesses. 10. PW 14 Doctor Nawal Kishore Singh of Madhubani Sadar Hospital has stated that on 9.9.1979 at 6.30 p.m. he had examined Uma Kant Jha (PW 10) at the Sadar Hospital and found a sharpcut injury on the middle of skull 2-1/2" x 1" x 1/4" (on X-ray found bone deep); a sharpcut injury 3" x 1/2" x 1/4" on the occipital area of the skull; penetrating wound 1/2" x 1/2" on the medial side of the left forearm just above the wrist; penetrating wound 1" 1/2" below the preceding injury; a sharpcut injury 1" x 1/2" x 1/4" on the medial side of the right forearm in the middle; a penetrating wound 1 over 2" x 1/2" on the medial side of the right forearm below elbow; and swelling throughout on left forearm (on X-ray fracture of ulna bone in the middle was detected). The first and the last injuries were grievous in nature and the rest were simple. The 1st, 2nd and 5th injuries were caused by some farsa-like weapon, while 3rd. 4th and 6th might have been caused by bhala. The last mentioned injury appeared to have been caused by a lathi blow. All the injuries were found having been inflicted within six hours. 11. On the same day and at about the same time the same doctor had examined PW 6 Jadubeer Jha and found as many as nine injuries on his person. The last mentioned injury appeared to have been caused by a lathi blow. All the injuries were found having been inflicted within six hours. 11. On the same day and at about the same time the same doctor had examined PW 6 Jadubeer Jha and found as many as nine injuries on his person. Those injuries were; a deep sharpcut wound above the left eye-brow measuring 2" x 1/6" x 1/4" a sharpcut wound 1" x 1/4" x 4" below the angle of left eye; a sharpcut wound 2" x 1/4" x 1/4" on left parietal bone; a sharpcut wound by the side of the preceding one measuring 1/22" x 1/2" x 1/4" (upto bone deep); a sharpcut wound 2" x 1/4" x 1/4" just one inch lateral to the preceding injury; a bruise 4" x 1" on the front of the right forearm; swelling on left leg near shin on the tibia bone; a bruise 3" x 1" on right shoulder joint; and a sharpcut wound on the medial side of the right leg above the ankle joint According to the doctor, the end. 3rd and 5th injuries were grievous in nature and the rest were simple. The 2nd to 6th and 9th were caused by some sharp-cutting weapon like farsa and the rest by hard and blunt substance like lathi. Those injuries were caused within six hours. The same doctor had also examined at 6.30 p.m. on 9.9.1979 Jeewach Jha, another son of informant Uma Kant Jha and found two bruises, one each on both the thighs measuring 4" x 1" and 1/22" x 1" and abrasion measuring 1/32" x 1" on back at the level of lumbor region. Those injuries were simple in nature caused by hard and blunt substance like lathi within six hours. 12. PW 13 Krishna Bihari Singh an Assistant Sub-Inspector of Pandaul Police Station visited the place of the occurrence on 12.9.1979 at 4.20 p.m. after receiving the fardbeyan (Ext. 10) of PW 10 at the police station on the same day in absence of other senior officers at the police station. He inspected the place of the occurrence shown to him by PW 2. It was a Kharhore situated 1/4th kilometer west of the houses of the accused persons situated at the same village. 10) of PW 10 at the police station on the same day in absence of other senior officers at the police station. He inspected the place of the occurrence shown to him by PW 2. It was a Kharhore situated 1/4th kilometer west of the houses of the accused persons situated at the same village. He had found a large number of hoof-marks on the said Kharhore the grass whereof was also found grazed. About 10 feet south of the northern ridge of the said plot he had found blood fallen on ground as well as on grass even though it had become faint due to rains during the preceding night. He scraped the blood stained soil and grass and seized the same in presence of witnesses. He had also found a lathi, a bhala and a gupti at the place of the occurrence and seized the same. According to him, the houses of the informant and other prosecution witnesses were situated at a distance of about half a kilometer south-east of that place. PW 11 Jitendra Prasad Verma who took up investigation from PW 13 also visited the place of the occurrence on the next day and found that the Kharhore in question appertained to plot No. 9100 of khata No. 415 of village Shahpur. Like PW 13, he had also found grass grazed and several hoof-marks of animals thereon. According to him, the soil and grass on which blood had fallen, had already been scraped by PW 13 who had visited the place of the occurrence earlier. It will be useful to note that to none of the police officers any other place of occurrence had been shown, where co-accused Mod Narayan Choudhary and appellant Nagendra Choudhary could have sustained the injuries which appear to have been found on their person. 13. The prosecution has alleged that it was these appellants and their other associates including those who stood acquitted by the trial Court, had herded their cattle on trial Kharhore of the informant and thereby were damaging the grass and, on protest they inflicted injuries on the persons of the informant his two sons and a nephew. As a result of such assault the deceased succumbed at Darbhanga Medical College and Hospital on 11.9.1979 in course of treatment. To prove their version of the occurrence the prosecution has placed reliance on the ocular version of eight witnesses. As a result of such assault the deceased succumbed at Darbhanga Medical College and Hospital on 11.9.1979 in course of treatment. To prove their version of the occurrence the prosecution has placed reliance on the ocular version of eight witnesses. Out of whom three, namely, PWs. 6, 8 and 10 are the injured and the remaining five, namely, PWs. 1, 2, 3, 7 and 9 are their co-villagers. PW 10 is the injured/informant. He had gone to his paddy field in the Badhar. When he noticed that a large number of she-buffaloes were grazing his Kharhore and about 15 to 20 persons were there and engaged in getting the Kharhore grazed by their animals he went there and protested. Consequently he was struck by appellant Kamal Nath Choudhary on his head by means of the farsa which he was wielding. On his alarm his two sons, namely, PW 8 and the deceased arrived there. They were also assaulted by those persons. In the meantime, PW 6 who happens to be his nephew, arrived at the scene while returning home from Madhubani and protested. He was also assaulted by the gangsters. On getting injured by those he lost his senses and regained only at Madhubani Sadar Hospital. According to him, besides appellant Kamal Nath Choudhary, appellants Kamp Narayan Choudhary and Hiralal Choudhary had also given him blows by means of bhala and lathi respectively. PW 8 Jeewach Jha has also stated that he went to the place of the occurrence alongwith the deceased on alarm raised by his father. When they reached there, they found that Kamal Nath Choudhary struck his father on head by means of farsa, Hiralal Choudhary by means of lathi and others also showered their lathis on his father. He was himself given a lathi blow each, by accused Hitai Choudhary and Bishwanath Choudhary (since acquitted). PW 6 Jadubeer, manifestly, reached at the place of the occurrence after the assault on the deceased as well as PWs 8 and 10. Therefore, he could not see who were their assailants. However when he reached there and protested he was greeted by appellants Kamp Narayan Choudhary and Bachha Choudhary with farsa blows and others with lathi blows. 14. PWs. 1. 2. 3. Therefore, he could not see who were their assailants. However when he reached there and protested he was greeted by appellants Kamp Narayan Choudhary and Bachha Choudhary with farsa blows and others with lathi blows. 14. PWs. 1. 2. 3. 7 and 9 who are undisputedly the co-villagers have stated that at the relevant time they were in the Badhar near the place of the occurrence, either they were going to their respective fields or were already there. All of them except PW 2, have staled that they had seen the Kharhore of the informant being grazed by animals and the appellants and some others were present there. Out of them PWs. 2, 7 and 9 were named in thefirst information report itself as the persons who were present at the time and place of the occurrence and saw it. All of them, except PW 3. have made a general statement that all the persons present at the Kharhore had assaulted the deceased as also the three injured. Only PW 3 has stated that while all the persons present at the Kharhore had assaulted the deceased and injured Uma Kant Jha and Jeewach Jha, only appellants Kamp Narayan Choudhary and Bachha Choudhary had given farsa blows on the person of injured Jadubeer Jha. While placing reliance on the testimony of PWs. 1, 2, 3, 7 and the three injured witnesses the learned Additional Sessions Judge has disbelieved the version of PW 9 Surya Kant Jha on the sole ground that when his statement was recorded under Section 161 of the Code of Criminal Procedure, he had stated that by the time he reached at the Kharhore of the informant, all the injured had lost their senses. The learned Additional Sessions Judge had inferred thereby that in all probability this witness (PW 9) had not seen the occurrence of assault which was finished by the time he reached at the place of the occurrence. The learned Sessions Judge lost sight of the fact that all the witnesses except the three injured persons were at some distance from the place of the occurrence when the occurrence of assault took place. Their attention was attracted to the place when there was commotion and subsequent assault on the informant and his two sons. The learned Sessions Judge lost sight of the fact that all the witnesses except the three injured persons were at some distance from the place of the occurrence when the occurrence of assault took place. Their attention was attracted to the place when there was commotion and subsequent assault on the informant and his two sons. Therefore, some of them rushed towards the site of the occurrence and some chose to witness the same from the place where they were present when the assault started. In other words, by the time PW 9 had arrived at the scene of the occurrence the assault had taken place. It means that PW 9 had seen the assault taking place from some distance and by the time he reached the actual of assault, the injured had already lost their senses on being inflicted multiple injuries on their persons. Therefore, there was nothing unusual in the statement of PW 9 whose name figured as an eye-witness in the first information report itself. 15. Indeed, the witnesses, particularly the informant has tried to improve the story in court respecting the assault on the deceased. In course of trial he has stated that when on alarm raised by him his two sons, namely, the deceased and PW 8 arrived at the Kharhore, they were assaulted by all the accused persons and then he proceeded to assign specific role to some of the members of the assembly in inflicting injuries on the person of the deceased. He stated that appellants Kamp Narayan Choudhary and Bachha Choudhary climbed over the chest of the deceased and pressed if even though in his belated first information report he had failed to say so. Likewise, he stated that appellants Hari Choudhary and Kamal Nath Choudhary put a lathi on the chest of the deceased and pressed it. however, in his earliest version in the first information report he had stated that those two appellants had pressed a lathi on the neck of the deceased. The witness appears to have made the improvement on realising that no injury to the neck caused by pressing of lathi on their arm was found by the doctor who held the autopsy on the dead body of the deceased. The witness appears to have made the improvement on realising that no injury to the neck caused by pressing of lathi on their arm was found by the doctor who held the autopsy on the dead body of the deceased. The witnesses had also tried to implicate more and more persons when in the witness box although they had omitted to name some of them in course of investigation. It is also a fact that some sort of ill-will or enmity was prevailing between the family of the informant on the one hand and some of the accused persons on the other. For example, it is admitted that there was a dispute between the families of the informant and some of the accused persons respecting a Goraiti land so much so that the informant was required to file a title suit against them. It is also admitted that earlier the father of appellant Bachha Choudhary had instituted a criminal case in which besides the informant and his son Jeewach Jha. PW 1 Balbhadra Jha and PW 7 Tarakant Jha were accused and in that proceeding appellants Nagendra Choudhary and Hiralal Choudhary had figured as witnesses against them. PW 1 had also filed a similar proceeding against the father of appellant Bachha Choudhary. The brother of the informant and father of PW 6, viz., Gangadhar Jha had also filed a criminal case against appellant Kamal Nath Choudhary and accused Hitai Choudhary in which PW 1 was a witness for the complainant. 16. On close scrutiny I find that it is not quite safe to place reliance on the testimony of PWs. 1 and 3. I have already indicated that PW 1 was not only an accused in a case instituted by the father of appellant Bachha Choudhary but had also figured as a witness in a similar proceeding instituted by the brother of the informant against appellant Kamal Nath Choudhary, and Hitai Choudhary. Both PWs 1 and 3 were not named in the first information report which was lodged on the 3rd day of the occurrence, i.e., after considerable delay. One of them, namely, PW 3 is said to be a close agnate of the informant. Under the circumstance, had PWs 1 and 3 been present any where near the place of the occurrence, the informant could not have omitted to name them as such in his first information report. One of them, namely, PW 3 is said to be a close agnate of the informant. Under the circumstance, had PWs 1 and 3 been present any where near the place of the occurrence, the informant could not have omitted to name them as such in his first information report. It cannot be said to be a mere omission on the part of the informant to name these very material witnesses, specially when he decided to name some others like PWs 2, 7 and 9. As regards PW 2 simply because he witnessed the occurrence of assault like an indifferent spectator from the road at a safe distance even without making any attempt to protest, muchless to intervene the victims of assault, in the circumstance of the case, it cannot be said that his conduct was quite unnatural and unbecoming of a close agnate like him who happens to be the first cousin of the informant and uncle of three injured including the deceased. When a large number of persons armed with weapons like farsa, bhala and lathi had indiscriminately assaulted the informant and others, it was quite natural that like a prudent man this witness decided to keep him at a safe distance from the assailants without inviting their (sic) against him. Therefore, even excluding the evidence of PWs 1 and 3. I find that testimony of the three injured coupled with that of PWs 2, 7 and 9 corroborated by medical evidence and the ocular findings of the two Investigating Officers who visited the site of the occurrence, lead to unmistakable conclusion that the occurrence had taken place in the manner stated by the prosecution. 17. The defence has tried to persuade us that the occurrence of assault on the deceased and the other injured witnesses did take place in some other manner. According to them two of the accused persons, namely, Raj Kumar Choudhary and Mod Narayan Choudhary were grazing their cattle when appellant Nagendra Choudhary and Mod Narayan Choudhary were assaulted by the prosecution party. In course of his evidence PW 11 has, indeed, admitted that there was a counter version of the occurrence as well giving rise to Pandaul Police Station Case No. 9(9) 979 which had been investigated by him. He had submitted charge-sheet in that case also. In course of his evidence PW 11 has, indeed, admitted that there was a counter version of the occurrence as well giving rise to Pandaul Police Station Case No. 9(9) 979 which had been investigated by him. He had submitted charge-sheet in that case also. The defence has not brought on record the first information report said to have been lodged by appellant Nagendra Choudhary respecting the manner in which co-accused Mod Narayan Choudhary had sustained injuries on their person. However, charge-sheet No. 14 dated 3.3.1980 filed in that case has been brought on record as Ext. 1. According to his document, that case was registered on the statement of appellant Nagendra Choudhary against the informant, his son Jeewach Jha (PW 8), his brother Gan-gadhar Jha and his two sons Jadubeer Jha (PW 6) and Raghubeer Jha. In column No. 7 thereof the facts of the case have been stated to the effect that on 9.9.1979 appellant Nagendra Choudhary had gone to his paddy field situated at Lakhanpura Bandh where his son Raj Kumar Choudhary was grazing his she buffalo. While he was talking with his son, the accused persons of that case arrived there and started abusing him as to why he was grazing his cattle on their land. When he retorted saying that nothing was being damaged by the cattle as the land in question was parti the accused persons of that case started to assault him. There is also an allegation that PW 6 Jadubeer Jha struck appellant Nagendra Choudhary on his abdomen by means of bhala and others assaulted him by means of lathis. To prove this version the defence has examined DW 2 Rudradeo Choudhary, a co-villager. According to him Raj Kumar Choudhary son of appellant Nagendra Choudhary and Mod Narayan Choudhary were grazing their cattle on a parti land and appellant Nagendra Choudhary was talking with his son when the present informant (PW 10) and others including PWs 6 and 8 arrived there with lathis, bhalas and farsas and abused him. On protest, PW 6 Judubeer Jha gave a bhala blow which hit appellant Nagendra Choudhary on the middle of abdomen. When he fled, he was chased and struck by others on his legs. Consequently, he fell down on the parti land of the informant and thereafter 4 to 5 more lathis were showered on him. 18. On protest, PW 6 Judubeer Jha gave a bhala blow which hit appellant Nagendra Choudhary on the middle of abdomen. When he fled, he was chased and struck by others on his legs. Consequently, he fell down on the parti land of the informant and thereafter 4 to 5 more lathis were showered on him. 18. From the evidence of PW 14 and documents adduced on behalf of the defence it appears that appellant Nagendra Choudhary and accused Mod Narayan Choudhary (since acquitted) had been brought to Mad-hubani Sadar Hospital in injured condition in the evening on 9.9.1979. Both of them were admitted for treatment. Their names have been mentioned against serial Nos. 4130 and 4128 respectively in indoor patient register of the said hospital, while appellant Nagendra Choudhary was referred to Darbhanga Medical College and Hospital keeping in view his serious condition. Mod Narayan Choudhary left the hospital on 12.9.1979 without informing the hospital authorities. It is not known what was the nature and extent of the injury if any, sustained by Mod Narayan Choudhary. However, PW 14 has stated that the abdomen of appellant Nagendra Choudhary was distended giving rise to suspicion that he was suffering from peritonitis. However, he could notice no external injury on his person including the abdomen. According to evidence of DW 4 Pandey Sudhir Kumar Sahay. Associate Professor of Surgery at Darbhanga Medical College and the bed head ticket (Ext. F) the said appellant Nagendra Choudhary had been operated upon for his abdomen injury at Darbhanga Medical College and Hospital on 10.9.1979 at about 12 noon. The witness has said that there was a sharpcut wound 1/12" (sic) in size on the left side of the abdomen. The bed head ticket and other documents disclose that actually the wound was externally only 1/2" long and not 1-1/2" as stated by DW 4 according to whom that injury might have been caused with the edge of a bhala. He has said that the injury was indicative of the features of peritonitis having been developed. Ext. C is an entry on the bed head ticket (Ext. F) respecting the findings of the surgeon who operated the patient. According to that entry, there was no stab penetrating the peritoneal cavity there was no internal injury at all. The injury indicates that the edge of the bhala had grazed against the abdominal wall. Ext. C is an entry on the bed head ticket (Ext. F) respecting the findings of the surgeon who operated the patient. According to that entry, there was no stab penetrating the peritoneal cavity there was no internal injury at all. The injury indicates that the edge of the bhala had grazed against the abdominal wall. It is true that on Ext. F the name of the patient has been mentioned as Rajendra Choudhary son of Bilat Choudhary but there can be little dispute that it was actually appellant Nagendra Choudhary who had been taken to Madhubani Sadar Hospital in the evening on 9.9.1979 and then was referred to Darbhanga Medical College and Hospital alongwith a slip (Ext. D) issued by PW 14. 19. When the prosecution witnesses including the injured were asked in course of their cross-examination if they had seen any injury on the person of the appellant Nagendra Choudhary, they replied in the negative. Similarly, they denied having seen him or even Mod Narayan Choudhary at Madhubani Sadar Hospital. Taking a cue from such statements on the part of the prosecution witnesses denying injury to two of the accused particularly appellant Nagendra Choudhary. and their presence at Madhubani Sadar Hospital during the evening of the occurrence, it has been contended that the prosecution having failed to explain the injury on the person of, at least, appellant Nagendra Choudhary. their version becomes doubtful. As regards the statement of the witnesses that they did not see any injury on the person of appellant Nagendra Choudhary or even on Mod Narayan Choudhary of the accused party, it is worth mentioning that even a professional witness like PW 14 missed to notice the small graze cut on the abdomen of the said appellant while giving him medical aid. Therefore if the prosecution witnesses failed to notice any such injury on his person it cannot be said that they have tried to conceal a very material fact deliberately. Similarly, simply because they denied the presence of the two injured of Madhubani Sadar Hospital no adverse inference need be drawn. 20. The law regarding effect of non-explanation of the injury on the accused by the prosecution has been very succintly laid down by the apex Court in the case of Kesha and others v. State of Rajasthan, 1995 Supp (4) SCC 453. 20. The law regarding effect of non-explanation of the injury on the accused by the prosecution has been very succintly laid down by the apex Court in the case of Kesha and others v. State of Rajasthan, 1995 Supp (4) SCC 453. as follows : "It has been observed in number of cases that it is the duty of the prosecution to explain the injuries on the accused of course even if there is no explanation that can be ignored provided the other evidence is cogent and convincing. But in case where the accused set (up) a plea of self-defence and relied on the medical evidence in support of the fact that they had injuries on their persons and thus justify their right of self- defence that creates a doubt." In other words if the accused proves by medical evidence or otherwise that they had sustained injuries in course of the same occurrence and take a plea of self-defence, failure on the part of the prosecution to explain their such injuries goes to create a doubt regarding the correctness of the prosecution version. However if there is cogent and convincing evidence by the prosecution to prove the guilt of the accused the failure by the prosecution to explain the injuries of the accused can be of no consequence. 21 Incidentally in the present case no plea of self-defence has been set up by the appellants either by adducing evidence or by giving suggestion to prosecution witnesses or making statements to this effect in course of their examination under Section 313 of the Code of Criminal Procedure. In the back drop of the counter version the nature and extent of injuries on the prosecution side including the deceased rule out the possibility of their being inflicted in any exercise of right of self- defence. There is only evidence to the effect that when the son of appellant Nagendra Choudhary and co-villager Mod Narayan Choudhary were grazing heir cattle and the said appellant was talking with them, the informant and other members of his family including PWs 6 and 8 went there, abused and assaulted him by giving bhala and lathi blows. The medical evidence does not fully corroborate the manner of occurrence alleged by them as no lathi injury was found by the doctor on his person. The medical evidence does not fully corroborate the manner of occurrence alleged by them as no lathi injury was found by the doctor on his person. From the evidence of the police officers (PWs 11 and 13) and seizure witnesses, like PWs 1 and 2 it appears that at the place of the occurrence the police had found a bhala, a gupti and a lathi. None of these prosecution witnesses have stated that the assailants while fleeing left behind their weapons. Similarly, there is no whisper that those weapons were subsequently planted by the accused. Therefore, natural inference will be that those three weapons actually belonged to the informant and his two sons who had gone to their fields. Since PW 6 was returning home from madhubani where he had gone for shopping, it was not expected that he could have wielded any weapon, muchless a bhala. It is common knowledge that in countryside when villagers go to their fields, they carry with them conventional weapons like lathis, spears and guptis or khantis. Therefore, even though some of the witnesses have stated that the informant and the injured were unarmed the possibility of their carrying such weapons cannot be ruled out. naturally, when they saw that a large number of cattle had either strayed on their Kharhore or had been deliberately herded by their owners, the informant and his two sons including the deceased went there and protested to be greeted with assault on them. When being assaulted they were not expected to be receiving the blows without any attempt on their part to defend them. In the process a blow or two might have been given to the assailants who included, according to them, appellants Nagendra Choudhary and accused Mod Narayan Choudhary. Therefore, the injuries on them stand sufficiently explained. It is pertinent to note that, admittedly, the occurrence of assault had taken place on the Kharhore of the informant as will appear not only from the defence version as disclosed in column. 7 of the charge-sheet in the counter case (Ext. I) but also from the version of DW 2. The probability further leans in favour of the prosecution when anyone finds that in the counter version reported by appellant Nagendra Choudhary there was no mention of the presence of the deceased in the assembly of the persons who had allegedly assaulted him. I) but also from the version of DW 2. The probability further leans in favour of the prosecution when anyone finds that in the counter version reported by appellant Nagendra Choudhary there was no mention of the presence of the deceased in the assembly of the persons who had allegedly assaulted him. Therefore on consideration of the evidence adduced by the parties and the broad probabilities we are left with no scope to doubt the prosecution version that it was the accused party who had indulged in aggression resulting in death of one person and injuries to three on the prosecution side. 22. The learned counsel for the defence has also drawn our attention to the tendency on the part of the informant and other witnesses to implicate as many people as they could with the lag of time. It is stated that soon after the injured were taken to Madhubani Sadar Hospital the services of the Sub-Divisional Judicial Magistrate Amod Prasad Ram of Madhubani Court (DW 1) were requisitioned for recording the dying declarations of the deceased and appellant Nagendra Choudhary. By the time DW 1 reached the hospital the deceased had already been taken to Darbhanga Medical College and Hospital. Consequently, he recorded the dying declaration of appellant Nagendra Choudhary (which has not been brought on record) and at the same time recorded the dying declaration of informant/injured Uma Kant Jha. The dying declaration of the informant has been brought on record as Ext. A with a view to contradict him. In the first information report which was lodged on 11.9.1979, he implicated as many as nine persons who are the appellants before us. In his so-called dying declaration (Ext. A) recorded by DW 1 he had named only appellant Kama1 Nath Choudhary. However, on perusal of Ext. A one finds that he had stated that number of the persons who had been grazing his Kharhore by means of their cattle, was about 20 to 22 and one of them was appellant Kamal Nath Choudhary. While making the statement he expressed his inability to name the other assailants because of the weakness he was feeling due to injury although he was knowing them. He desired to make statement regarding the other assailants on the following day, which could not be done, probably because nobody had approached him for the purpose. While making the statement he expressed his inability to name the other assailants because of the weakness he was feeling due to injury although he was knowing them. He desired to make statement regarding the other assailants on the following day, which could not be done, probably because nobody had approached him for the purpose. When a police officer visited the hospital on 11.9.1979, he made the statement implicating the appellants and some unknown persons. Therefore, the omission by the informant to name other assailants including the appellants other than appellant Kamal Nath Choudhary cannot be construed to mean that at that time he was not knowing the names of his other assailants. 23. The fact, however, remains that when he got the opportunity on 11.9.1979 he could disclose the names of only present appellants. When he came to the witness box, he implicated six more persons who stood acquitted. On his part PW 6 claimed to have identified only appellants Bachha Choudhary and Kamp Narayan Choudhary, besides two others named Tirpit Choudhary and Raj Kumar Choudhary as his assailants; and PW 8 claimed to have identified sixteen of the assailants including the appellants other than appellant No. 2 in criminal appeal No. 198 of 1985, namely, Kali Choudhary. PW 2 named appellants other than appellant Nos. 1 and 6 of the criminal appeal No. 198 of 1985, besides six others; and PW 7 named eight of the appellants excluding Sarwan Choudhary and eight others. PW 9 also claimed to have identified appellants other than Kali Choudhary and six others. PWs. 1 and 3 have also claimed to identify only five and seven of the assailants respectively. Since they are not found to be reliable witnesses it is not necessary to name the persons who are claimed to have been identified by them. 24. PWs 2, 7, 8, 9 and 10 claimed to have identified appellants Kamal Nath Choudhary, Nagendra Choudhary, Bulbul Choudhary and Hari Choudhary. Appellants Bachha Choudhary and Kamp Narayan Choudhary have been identified by all the prosecution witnesses. 24. PWs 2, 7, 8, 9 and 10 claimed to have identified appellants Kamal Nath Choudhary, Nagendra Choudhary, Bulbul Choudhary and Hari Choudhary. Appellants Bachha Choudhary and Kamp Narayan Choudhary have been identified by all the prosecution witnesses. Appellant Hiralal Choudhary appears to have been identified by PWs 2, 7, 8 and 10 only PWs 8, 9 and 10 claimed to have identified as a member of the unlawful assembly appellant No. 1 in criminal appeal No. 198 of 1985, namely, Sarwan Choudhary, while appellant No. 2 in the said appeal, namely, Kali Choudhary has been named by PWs 2 and 7 only. In other words, appellant No. 2 Kali Choudhary in criminal appeal No. 198 of 1985 has not been identified by any of the injured witnesses. particularly PWs. 8 and 10. who could have not missed to name him if present in the assembly. The position of PWs 8 and 10 was quite different from that of PW 6 Jadubeer Jha in getting an opportunity to see and identify all the assailants. As regards PW 6 it is the avowed case of the prosecution that when he came to the scene of the occurrence, the assault on the deceased and PWs 8 and 10 had already started and as soon as he rushed to the Kharhore, he was dealt blows by four of the members of the unlawful assembly whom he claims to have identified. It is manifest that before reaching the scene of the occurrence he had little opportunity to stare at the faces of all the assailants. Therefore omission on the part of PW 6 to name appellants other than Bachha Choudhary, Kamp Narayan Choudhary alias Kampu Choudhary and two others who have since been acquitted, is of no consequence regarding the assault had started. As a matter of fact, there had been some exchange of hot words between them on the one hand and the member of the assembly on the other. Therefore, they had sufficient opportunity to see all of them. Hence, omission on their part to name appellant Kali Choudhary as one of the members of the unlawful assembly certainly makes his participation in the unlawful assembly a matter of serious doubt. Therefore the said appellant is, certainly, entitled to the benefit of doubt and to be acquitted of the charges on this ground alone. 25. Hence, omission on their part to name appellant Kali Choudhary as one of the members of the unlawful assembly certainly makes his participation in the unlawful assembly a matter of serious doubt. Therefore the said appellant is, certainly, entitled to the benefit of doubt and to be acquitted of the charges on this ground alone. 25. Now coming to the offence or offences committed by the appellants it will appear from the medical evidence of PW 15 that out of eleven ante-mortem injuries sustained by the deceased only injuries against serial Nos. 3. 4 and 5 were primarily fatal as they were dangerous to life according to the autopsy evidence. They were all on head of the deceased. There is no specific evidence that those injuries were hand-work of the appellants in criminal appeals No. 262 of 1985 and 263 of 1985. Only specific overt act attributed to them is that they had tried to throttle the deceased, or pressed his chest by putting a lathi across it. Apart from the fact that such evidence is wavering in nature, the injury found on the chest of the deceased did not prove fatal. Therefore they are not proved to be the real or principal killers of the deceased so as to be guilty under Section 302 of the Indian Penal Code. Hence, their conviction under Section 302 simpliciter cannot be maintained. However, there can be no denying the fact that these three appellants and some others had found an unlawful assembly being more than 5 in number and in prosecution of the common object of such assembly, which could develop in course of the occurrence, the deceased was killed. Even if there is no specific evidence that these three appellants were authors of the fatal wounds, they cannot escape the liability for such murder vicariously. As has been held by the apex Court in the case of Dalji and others v. State of U.P., AIR 1989 SC 754 , while overt act and active participation may indicate common intention of the person participating in the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149 as the basis of constructive guilt under Section 140 is mere membership of an unlawful assembly with the requisite common object or knowledge. Therefore the conviction of the appellants in criminal appeals No. 262 of 1985 and 263 of 1985, namely, Kamp Narayan Choudhary alias Kampu Choudhary, Bachha Choudhary and Kamal Nath Choudhary under Section 302 of the Indian Penal Code is set aside and instead, they are convicted under Section 302 read with Section 149. Their sentences of life imprisonment for the said offence are, however, maintained. On consideration of the evidence on record I find that convictions of all the appellants in all the three appeals, except appellant No. 2 in criminal appeal No. 198 of 1985 and the resultant punishments awarded to them require no interference. They are, accordingly, affirmed. 26. In the result, criminal appeal No. 198 of 1985 in so far as it concerns appellant No. 2 Kali Choudhary is allowed and the conviction and sentences of the said appellant set aside. He is discharged of the liability of his bail bond. However, it stands dismissed in respect of other appellants. Criminal Appeals No. 262 of 1985 and 263 of 1985 are dismissed with the modification/alteration of the conviction of the appellants therein as indicated above. All the appellants other than appellant Nos. 2 and 5, in criminal appeal No. 198 of 1985 are directed to surrender in the trial Court to serve out the remaining part of their sentences. Their bail is cancelled. Naresh Kumar Sinha, J. 27 I agree.