Judgment B.P.Singh and Radha Mohan Prasad JJ. 1. There are eight appellants in these three appeals which have been preferred against the judgment and order of the Additional Sessions Judge, Bhojpur, Arrah dated 11th March, 1988, in Sessions Trial No. 369 of 1981. The learned Additional Sessions Judge has found appellant Baliram Singh guilty of the offence under Section 302, IPC and sentenced him to undergo rigours imprisonment for life. He has also found all the appellants guilty of the offence under Section 302/149, IPC and sentenced them to undergo rigorous imprisonment for life. Appellants Raman Singh, Banaras Singh and Sheojee Singh (appellant in Cr. Appeal No. 114 of 1988) have also been found guilty of the offence under Section 307, IPC while remaining appellants have been found guilty of the offence under Section 307/149, IPC but no separate sentence has been awarded on this count. Appellant Ram Pravesh Singh has been found guilty of the offence under Sections 109/302/307, IPC but no separate sentence has been passed. Five of the appellants, who are said to have been armed with deadly weapons, namely, appellants Raman Singh, Banaras Singh, Sheojee Singh, Baliram Singh and Krishna Singh, have been found guilty of the offence under Section 148, IPC and sentenced to undergo two years rigorous imprisonment each while the remaining three appellants have been sentenced to undergo one year rigorous imprisonment each under Section 147, IPC. All the sentences have been directed to run concurrently. 2. There are three appellants in Cr. Appeal No. 114 of 1988, namely, Sheojee Singh, Banaras Singh and Raman Singh. Sheojee Singh and Banaras Singh are brothers, but it is not clear as to whether Raman Singh is related to them. In Cr. Appeal No. 129 of 1988 there are four appellants, namely, Ram Pravesh Singh, Krishna Singh, Rabindra Singh and Baliram Singh. Ram Pravesh Singh is the father of the remaining appellants. In Cr. Appeal No. 145 of 1988 there is only one appellant, namely Baswan Sah, who is a co-villager of the remaining appellants. 3. The occurrence giving rise to the instant appeals as said to have taken place at about 8 a.m. on 19.9.1980 at village Sundara on a chabutra (platform) in front of the darwaja of the deceased. In Cr. Appeal No. 145 of 1988 there is only one appellant, namely Baswan Sah, who is a co-villager of the remaining appellants. 3. The occurrence giving rise to the instant appeals as said to have taken place at about 8 a.m. on 19.9.1980 at village Sundara on a chabutra (platform) in front of the darwaja of the deceased. The deceased Bhuneshwar Singh, who was a Dafadar, is said to have been assaulted by the appellants and as a result of the injuries inflicted upon him, he succumbed to his injuries four days later on 23.9.1980 at the Patna Medical College and Hospital. According to the prosecution, while he was being taken to Koilwar, the deceased requested PW 1 Deoranjan Singh to write out his fardbeyan which he wanted to lodge at the police station and on his dictation, fardbeyan was scribed by PW 1 which was later handed over by the deceased to the investigating Officer at Koilwar. 4. The prosecution has examined eight witnesses, of whom four claim to be eye-witness, namely, Deoranjan Singh (PW 1), Ambika Singh (PW 2), Sohan Paswan (PW 3) and Babu Lal (PW 4). The Investigating Officer Sita Ram Tiwari has been examined as PW 5. Dr. Nishi Kant Thakur has been examined as PW 6 since he had examined the injuries of the deceased as well as of Bihari Sao and Ambika Singh, while he was posted as the Medical Officer of Koilwar State Dispensary. The doctor who conducted the post-mortem examination on the dead-body of the deceased has not been examined and it was stated by PW 7 that he (Dr. Ram Badan Choudhary) died on 14.4.1986. PW 7 Dr. Anil Kumar Singh has proved the post-mortem report as being in the handwriting of Dr. Ram Badan Chaudhary, Associate Professor of Forensic Medicine, Patna Medical College and Hospital. PW 8 is a formal witness who has proved the inquest report. 5. As noticed earlier, the written report signed by the deceased was handed over to the Investigating Officer at Koilwar Police Station on 19.9.1980 at 12.30 p.m. In the said written report, which is a detailed one, the deceased stated that on that day at 8 a.m. he was sitting at his darwaja when suddenly all the eight appellants named in the written report came. The weapons carried by each of them has also been specifically stated in the report. The weapons carried by each of them has also been specifically stated in the report. Appellant Ram Pravesh Singh exhorted his companions to kill the Dafadar (meaning thereby, the informant) since he was the persons who was instigating Basgit Sah to file cases. Upon this, appellants Raman Singh, Banaras Singh and Sheojee Singh (Appellants in Cr. Appeal No. 114 of 1988), who were armed with country-made guns, fired one shot each, but did not injure the informant. The informant wanted to run away but, in the meantime, Baliram assaulted him on his head with a garasa, as a result of which there was bleeding and the informant fell on the ground. Thereafter, appellants Ravindra Singh, Krishna Singh and Basawan Sah wielded their lathis indiscriminately, as a result of which the informant was injured on his back and waist. The informant cried for help and on hearing him Bihari Sao (not examined), Ambika Singh (PW 2), Deoranjan Singh (PW 1), Babu Lal Dusadh (PW 4), Sohan Dusadh (PW 3), Paltu Kahar (not examined) etc. came and prevented further assault. While attempting to save him, Bihari Sah was hit on his head by Basawan Sah. Ambika Singh (PW 2) was also assaulted on his right hand with lathi by appellant Rabindra Singh. A motive was also alleged in the written report stating that Basgit Sah has lodged a case against appellant Basawan Sah and others which had been registered at Koilwar Police Station. In that case brother of the informant, namely, Chandrika Singh and his cousin Kesho Singh were witnesses. On account of this enmity, the appellants had formed an unlawful assembly and had come with the intention of killing the informant. On the basis of the said written report, a formal First Information Report was drawn up at Koilwar Police Station and a case was registered under Sections 147, 148, 149, 324, 323 and 307, IPC. 6. The case of the prosecution is that the injured Bhuneshwar Singh (informant) was medically examined by the Doctor at the Koilwar State Dispensary (PW 6), but was referred to Ara Hospital for treatment. It also appears that Bhuneshwar Singh was later sent to the Patna Medical College and Hospital where he succumbed to his injuries four days later on 23rd September, 1980. 7. We may first advert to the medical evidence which would disclose the nature of injuries suffered by the informant and others. It also appears that Bhuneshwar Singh was later sent to the Patna Medical College and Hospital where he succumbed to his injuries four days later on 23rd September, 1980. 7. We may first advert to the medical evidence which would disclose the nature of injuries suffered by the informant and others. PW 6 Nishi Kant Thakur deposed that he examined the injuries of Bhuneshwar Singh (informant), since deceased, at 1.40 p.m. on 19.9.1980. He found the following injuries on the person of the informant : (i) Lacerated would 3" x l"/2 x scalp deep on the head. (ii) Swelling on left shoulder joint 2"x 1/2" x 1/4". (iii) Bruise 1" x 1/4" skin mark on the back of the trunk. He deposed that the injuries were simple in nature and may or may not be serious, since the opinion could be changed after seeking the X-ray report. In his opinion, the injuries were caused by hard and blunt substance. He has proved his injury report (Ext. 4). 8. On the same day, he examined Bihari Sao (not examined) and found the following injuries on his person : (i) Mild swelling on the left side of forehead 1" x 1/4" skin deep. (ii) Bruise on the upper part of the left arm 1" x 1 /4" x skin deep. The injuries were simple in nature and caused by hard and blunt substance such as lathi. On the same day, he also examined the injuries of Ambika Singh (PW 2) and found the following injuries on his person : (i) Eechymosis on the right palmer surface of the hand 1" x 1/3" x 1/4". Injury was simple in nature caused by hard and blunt substance such as lathi. 9. It would thus appear from the deposition of PW 6 that the informant Bhuneshwar Singh (since deceased) had received three injuries which, in the opinion of the Doctor (PW 6), were simple in nature though opinion could be changed after seeing the X-ray report. The injuries as found by him were caused by hard and blunt substance. Similarly, two others, namely, Bihari Sao and Ambika Singh (PW 2) had also suffered simple injuries caused by hard and blunt substance. 10. The Medical Officer, who conducted the post-mortem examination on the dead-body of the deceased has not been examined, but the post-mortem report has been marked as Ext. 6 at the trial. Similarly, two others, namely, Bihari Sao and Ambika Singh (PW 2) had also suffered simple injuries caused by hard and blunt substance. 10. The Medical Officer, who conducted the post-mortem examination on the dead-body of the deceased has not been examined, but the post-mortem report has been marked as Ext. 6 at the trial. From the post-mortem report it appears that the post-mortem examination was conducted on 24.9.1980 at 10 a.m. and the following ante-mortem injuries were found : (i) Stitched wound 2-1/2" x 1/2" x scalp deep on left side of head. On dissection on cutting of bone was found. There was no fracture of skull. Subdural haematome was found on both hemispheres. The injuries were caused by hard and blunt Substance. The doctor conducting the post-mortem examination has recorded that he did not agree with the inquest report that the injury was caused by garasa. Cause of death was said to be head injury. 11. Unfortunately, though the deceased was under medical treatment at Arrah Hospital in the first instance, and was later shifted to the Patna Medical College and Hospital, no material has been placed on record to show how he was treated at the two hospitals and whether it was on account of the head injury that he ultimately died. No doctor has been examined of either of the two hospitals to depose at the trial as to the treatment given to the injured and the probable cause of his death. 12. What it, however, apparent is the fact that the injured has suffered a head injury apart from two minor injuries which were simple in nature. It was not known whether any X-ray was done, and if so what was disclosed in the X-ray report. The Medical Officer who first examined the injured was of the opinion that the injuries were caused by hard and blunt substance. That is also the opinion of the Doctor who conducted the post-mortem examination. The Doctor conducting the post-mortem examination has in so many words disagreed with the inquest report stating that the injury on the head was caused by garasa and not by lathi. 13. A submission was advanced on behalf of the appellants that there was no satisfactory evidence on record to establish that the death was caused on account of the injuries suffered by the informant at the hands of the appellants. 13. A submission was advanced on behalf of the appellants that there was no satisfactory evidence on record to establish that the death was caused on account of the injuries suffered by the informant at the hands of the appellants. Reliance was also placed upon the statement of the Investigating Officer, to whom the written report was handed over by the informant himself and who recorded the further statement of the informant that he did not , notice anything unusual about the condition of the informant when he recorded his further statement. 14. We have noticed the relationship of the appellants. On the other hand, the deceased Bhuneshwar Singh was a cousin of PW 1 Deoranjan Singh and they were living jointly. PW 2 Ambika Singh is the brother of the deceased Bhuneshwar Singh. Since Counsel for the appellants strenuously urged that this is a case of false implication because of subsisting animosity between the parties, we may notice the evidence on record which does establish the existence of strained relationship between the parties. It has been admitted by PW 1 that one Basgit Sah has lodged a criminal case against appellants Banaras Singh, Sheoji Singh and Basawan Sah. The prosecution case is that in that case the brother of the deceased and his cousin were witnesses in favour of Basgit and in that case charge-sheet has been submitted. The appellants entertained a suspicion that Basgit was being instigated by Bhuneshwar Singh (deceased) and at his instance the criminal case had been filed. The evidence on record also discloses that the wife of Basawan Sah had lodged a criminal case alleging that she had been raped by the deceased Bhuneshwar Singh, PW 1 Deoranjan Singh and PW 2 Ambika Singh. In that case cognizance was taken by the Magistrate, against which the aforesaid accused went in revision which is said to be pending. It also appears that in that case the witnesses of the prosecution are the three appellants in Cr. Appeal No. 114 of 1988, namely, Sheojee Singh, Banaras Singh and Raman Singh, who are brothers, and Krishna Singh, the appellant in Cr. Appeal No. 129 of 1988. It was, therefore, strenuously urged on behalf of the appellants in Cr. It also appears that in that case the witnesses of the prosecution are the three appellants in Cr. Appeal No. 114 of 1988, namely, Sheojee Singh, Banaras Singh and Raman Singh, who are brothers, and Krishna Singh, the appellant in Cr. Appeal No. 129 of 1988. It was, therefore, strenuously urged on behalf of the appellants in Cr. Appeal No. 114 of 1988 that they have been falsely implicated because of the fact that all of them are witnesses in the criminal case in which the deceased as well as PWs 1 and 2 are charged of having committed rape. 15. Having regard to these admitted facts, we find that there was strained relationship between the parties, particularly between the deceased and PWs 1 and 2 on the one hand, and the appellant in Cr. Appeal No. 114 of 1988 on the other. Basawan Sah, the appellant in Cr. Appeal No. 145 of 1988 was also on inimical terms with the members of the prosecution party because in one case he is himself an accused and in the other case his wife is the complainant against the deceased, PW 1 and PW 2. 16. It is well-settled that mere existence of enmity or strained relationship does not furnish a sufficient ground for rejecting the testimony of a witness outright. What has been emphasised is the fact that if such enmity exists, the evidence of the witness must be critically scrutinised applying the rule of caution, so that false implication of innocent persons is ruled out. We now proceed to deal with the testimony of the witnesses. 17. PW 1 Deoranjan Singh had deposed that on the date of occurrence at 8 a.m. he was sitting in his dalan with Ambika Singh (PW 2). Bhuneshwar Singh (deceased) was sitting on a chabutra (platform) to the east of the dalan. The dalan was jointly owned by him and the deceased Bhuneshwar Singh, who was his cousin. While he was in his dalan, he heard some noise and the voice of appellant Ram Pravesh Singh saying that the Dafadar should be killed because he was the source of all trouble. Hearing this, he came out of the dalan and saw the eight appellants coming from the northern direction. This witness deposed that the dalan of the appellant was to the north of his dalan at the distance of 15-20 steps. Hearing this, he came out of the dalan and saw the eight appellants coming from the northern direction. This witness deposed that the dalan of the appellant was to the north of his dalan at the distance of 15-20 steps. Out of the appellants Ram Pravesh Singh, Ravindra Singh and Basawan Sah were armed with lathis. Appellants Banaras Singh, Sheojee Singh and Raman Singh were armed with pistols while appellant Krishna Singh was armed with Bhala and Baliram Singh with a garasa. On the exhortation of Ram Pravesh Singh, appellants Banaras Singh, Sheojee Singh and Raman Singh each fired one shot from their country-made pistols, but none of the shots fired by them his Bhuneshwar Singh as they went over hit head. Bhuneshwar Singh (deceased) was trying to run away when Baliram Singh gave one garasa blow on his head causing an injury. Bhuneshwar Singh (deceased) fell down and after he fell down, appellants Ravindra Singh and Basawan Sah assaulted him with lathi. Krishna Singh assaulted him with the lathi portion of Bhala. While attempting to save Bhuneshwar Singh, Bihari Sao and Ambika Singh were also assaulted. Bihari Sao was assaulted on his head with a lathi by Basawan Sah, while appellant Ravindra Singh assaulted Ambika Singh (PW 2) with lathi. When this witness attempted to save Bhuneshwar Singh, appellant Sheojee Singh and Krishna Singh ran after him in order to assault him, whereupon he retreated. On hearing alarm, many persons had assembled and, thereafter the appellant went to his dalan. This witness has stated that a criminal case was filed by Basgit Sah against appellants Banaras Singh, Sheoji Singh (Appellants in Cr. Appeal No. 114 of 1988) and Basawan Sah (Appellant in Cr. Appeal No. 145 of 1988) in which the brother and cousin of the deceased were witnesses. In that case charge-sheet was submitted. Appellants used to say that Bhuneshwar Singh, Dafadar, had got the case filed by Basgit Sah. 18. PW 1 has further deposed that after the appellants went away, Bhuneshwar Singh was carried on a cot to Akhagaon Bazar. They had to wait for some time there for finding a means of conveyance. PW 2 Ambika Singh, PW 3 Sohan Dusadh and Bihari Sah (not examined) and others were with him. At Akhgaon, Bhuneshwar Singh asked this witness to take down his report, which he wrote, and that was signed by Bhuneshwar (deceased). They had to wait for some time there for finding a means of conveyance. PW 2 Ambika Singh, PW 3 Sohan Dusadh and Bihari Sah (not examined) and others were with him. At Akhgaon, Bhuneshwar Singh asked this witness to take down his report, which he wrote, and that was signed by Bhuneshwar (deceased). This witness had also put his signature as the scribe of the said document. The witness has identified this signature on the report which was marked as Ext. I. Thereafter, he and Sohan Paswan (PW 3) took Bhuneshwar Singh on a tumtum (cart driven by horse) to Koilwar. Ambika Singh (PW 2) and Bihar Sao could not be accommodated on the tumtum, therefore, they walked towards Koilwar. On reaching the Police Station, Bhuneshwar Singh handed over the written report to the Sub-Inspector who also recorded his further statement and noted it down in the case diary. Thereafter, Sub-Inspector is said to have recorded the statement of this witness and Sohan. Thereafter, Bhuneshwar Singh was taken to Koilwar Hospital where he was given first-aid, whereafter, they took him to Ara Sadar Hospital on the suggestion of the Doctor at the Koilwar Health Centre. After Bhuneshwar Singh was brought to Ara Sadar Hospital, Ambika Singh (PW 2) also reached there. After Ambika Singh came, this witness went home. Bhuneshwar Singh was taken to Patna for treatment, but he died on 23.9.1980. This witness in paragraph 8 of his deposition stated that the wife of Basawan Sah had lodged a criminal case of rape on 16.6.1980 against him, deceased Bhuneshwar Singh and Ambika Singh (PW 2). This witness stated that the appellants came from the northern direction and climbed on the chabutra and fired at Bhuneshwar Singh, and the firing was done from a distance of 5-6 steps only. He further stated that Bhuneshwar Singh was assaulted with garasa while he was sitting on the chabutra, but after receiving the injury he fell down. He also admitted that in the rape case, appellants Sheojee Singh, Banaras Singh, Raman Singh (Appellants in Cr. Appellant No. 114 of 1988) and Krishna Singh (one of the appellants in Cr. Appeal No. 129 of 1988) were witnesses against them. But in that case, the accused had preferred a revision which was pending. He also admitted that in the rape case, appellants Sheojee Singh, Banaras Singh, Raman Singh (Appellants in Cr. Appellant No. 114 of 1988) and Krishna Singh (one of the appellants in Cr. Appeal No. 129 of 1988) were witnesses against them. But in that case, the accused had preferred a revision which was pending. Counsel for the appellants has also emphasised the statement made by this witness in paragraph 24 of his deposition that Bhuneshwar Singh did not talk to anyone while he was taken to the hospital from the place of occurrence. 19. PW 2 Ambika Singh deposed that he was the brother of deceased Bhuneshwar Singh. He also described the occurrence in the same manner as it was described by PW 1. This witness has, however, admitted that other witnesses came ten minutes after the occurrence. He has corroborated the statement of PW 1 by saying that at Akhgaon, Bhuneshwar Singh got his statement scribed by PW 1 Deoranjan Singh. He has also supported PW 1 that he could not go on tumtum to Koilwar. Therefore, he walked along with Bihari Sah to Koilwar. At Koilwar he met the Sub-Inspector near the crossing and the Sub-Inspector recorded the statement of both and also saw their injuries. Both were sent to Koilwar Health Centre for medical examination. According to this witness, blood had fallen at the place of occurrence but had been washed away by the rains. About firing of pistols, he stated that the shots were fired from the pistols on Bhuneshwar Singh from a distance of about 20 hands (30 feet). Bhuneshwar Singh could not run away since he was a weak person, though not ill. Baliram Singh assaulted Bhuneshwar Singh and he fell down. Others assaulted him with lathi. Those armed with pistol did not assault him. When this witness went to save Bhuneshwar Singh, he was also given one lathi blow. Bhuneshwar Singh was also given 3-4 lathi blows on his body. After the occurrence they proceeded to the police station. Bhuneshwar Singh did not talk to anyone at the place of occurrence since he was unconscious. This witness met the deceased in the Ara Hospital and he found that Bhuneshwar Singh was conscious till 8 a.m. on 20.9.1980, whereafter he became unconscious. After the occurrence they proceeded to the police station. Bhuneshwar Singh did not talk to anyone at the place of occurrence since he was unconscious. This witness met the deceased in the Ara Hospital and he found that Bhuneshwar Singh was conscious till 8 a.m. on 20.9.1980, whereafter he became unconscious. This witness, however, supported PW 1 by saying that Bhuneshwar Singh himself requested Deoranjan Singh to scribe the report since he knew that he was being taken to the police station. Deoranjan had some paper with him but a pen was brought from the market. Since conveyance was not readily available, they had to wait for some time at Akhgaon. This witness has also admitted the fact that there was a rape case against him and others in connection with which a revision was pending. 20. Sohan Paswan (PW 3) deposed that on 19.9.1980 at about 8 a.m. he was going to ease himself when he heard some noise and went to the darwaja of Bhuneshwar Singh. He found Bhuneshwar Singh sitting on the chabutra of his dalan. At that time he saw the eight appellants there variously armed with deadly weapons, which he described in his deposition. He did not see who assaulted whom. Bhuneshwar Singh had told him that Baliram Singh assaulted him with garasa. Three appellants armed with pistols had also fired but did not injure anyone. Bhuneshwar Singh was taken to Akhgaon and this witness had also accompanied Deoranjan (PW 1), Ambika Singh (PW 2) and Bihari Sah. From Akhgaon this witness along with deceased Bhuneshwar Singh and Deo Ranjan went to Koilwar Police Station on tumtum while Ambika and Bihari came walking. At the Police Station, the blood-stained clothes were handed over to the Sub-Inspector by Bhuneshwar Singh, A seizure memo was prepared which was signed by this witness. In cross-examination, this witness has admitted that he was at a distance of 1 Bigha to the north when he heard the noise. He alone came to the place of occurrence, and apart from the appellants and Bhuneshwar Singh, he did not see any other person there. Later, about 50 persons had come to the place of occurrence, including Babu Lal and Paltoo, etc. He was there at the place of occurrence for about 10-15 minutes but during this period, he did not talk to any of the witnesses about the occurrence. Later, about 50 persons had come to the place of occurrence, including Babu Lal and Paltoo, etc. He was there at the place of occurrence for about 10-15 minutes but during this period, he did not talk to any of the witnesses about the occurrence. He denied the suggestion that he was cultivating the field of Deoranjan Singh and, therefore, he was falsely deposing at his instance. 21. PW is a chance witness, and his notice was attracted by the noise which came from the house of Bhuneshwar Singh. If this witness is to be believed, he was the only witness to the occurrence since the others came later. This witness has not mentioned the presence of the other witnesses nor has he deposed about the assault on Ambika (PW 2) and Bihar Sah. At one place, he stated that he was at the place of occurrence for only 10-15 minutes but, at the same time, he also claimed that he accompanied Bhuneshwar Singh to Koilwar. Reading his evidence as a whole, we are not inclined to place much reliance on his testimony. The possibility of this witness being a got up witness cannot be ruled out. 22. Babu Lal Dusadh (PW 4) also deposed that at about 8 a.m. on the date of occurrence he was returning after easing himself. When he reached near the darwaja of Bhuneshwar Singh, he saw that a quarrel was going on. He first stated that he did not see anyone but then corrected himself by saying that he saw all the eight witnesses. He did not see who assaulted Bhuneshwar Singh but he saw that Bhuneshwar Singh on being assaulted by those persons fell down. After the witnesses came, the appellants ran away. He witnesses the occurrence from a distance of about 10 steps. This witness is also a chance witness like PW 3. Reading his evidence as a whole, we find that he has not mentioned anything about the firing of pistols by some of the accused, nor has he stated about the assault on Ambika Singh PW 2 and Bihari Sah. He has also not mentioned about the presence of any of the eye-witnesses when the occurrence took place. We do not find it to be safe to rely upon the testimony of this witness. 23. PW 5 is the Investigating Officer of the case. He has also not mentioned about the presence of any of the eye-witnesses when the occurrence took place. We do not find it to be safe to rely upon the testimony of this witness. 23. PW 5 is the Investigating Officer of the case. According to him, at 12.30 p.m. Bhuneshwar Singh came to the Police Station and handed over the written report to him. He was accompanied by Deoranjan (PW 1) and Sohan Paswan (PW 3). On the basis of the written report, he registered a case and, thereafter, recorded the further statement of Bhuneshwar Singh. Blood stained clothes were handed over to him by Bhuneshwar Singh and he prepared a production list. He also recorded the statement of Deoranjan Singh (PW 1) and Sohan Paswan (PW 3). At about 1.15 p.m., he proceeded to the place of occurrence. When he reached the crossing at Koilwar, he met injured Ambika Singh and Bihari Sao. He recorded their statements and sent them to the hospital for treatment. At 4 p.m. he reached the place of occurrence and inspected the same. He came to know on 25th September, 1980 that Bhuneshwar Singh succumbed to his injuries on 23.9.1980. When Bhuneshwar Singh handed over the written report to him, he was conscious and this witness did not apprehend anything seeing the condition of Bhuneshwar Singh. At the place of occurrence he did not find any empty cartridge, etc. nor did he find any blood. He did not find any trampling mark at the place of occurrence. 24. We shall first consider the submission urged on behalf of the appellants that the fardbeyan, on the basis of which the FIR was drawn up in the instant case, was a manufactured document and that Bhuneshwar Singh was not in a position to dictate the First Information Report. The evidence on record does not support the plea that after receiving injuries Bhuneshwar Singh was not in a position to dictate his report to PW 1. No doubt, in his deposition PW 2 has stated that Bhuneshwar Singh was unconscious soon after the occurrence, and that is why he did not talk to him at the place of occurrence. The same witness, however, stated that later Bhuneshwar Singh himself requested PW 1 to scribe his report since he knew that he was going to the Police Station. The same witness, however, stated that later Bhuneshwar Singh himself requested PW 1 to scribe his report since he knew that he was going to the Police Station. It may be that immediately after the occurrence, Bhuneshwar Singh fainted or any have been in a state of shock. No other witness has stated that Bhuneshwar Singh was unconscious after the occurrence. But, the deposition of PW 1 is also to the effect that at Akhgaon Bhuneshwar Singh wanted him to take down the written report which he wanted to dictate. At the Police Station, Bhuneshwar Singh himself handed over the report to the Investigating Officer. In fact, his further statement was also recorded by the Investigating Officer. The Investigating Officer has stated that he did not apprehend anything seeing the condition of Bhuneshwar Singh, meaning thereby that the condition of Bhuneshwar Singh did not cause any concern. The report of the Medical Officer who examined Bhuneshwar Singh at Koilwar State Dispensary also does not support the plea that Bhuneshwar Singh was unconscious. 25. We are, therefore, of the opinion that this submission urged on behalf of the appellants has no force and must be rejected. On the contrary, it appears to us that Bhuneshwar Singh was in a fit state of mind and this is further corroborated by the fact that the First Information Report is a detailed document by the informant which contains all details, not only with regard to the participants, but also the weapons carried by them, the manner of assaults, as to who assaulted whom, about the witnesses who appeared on alarm being raised etc. So much to that in the First Information Report, the motive for the occurrence has also been stated. This report was handed over by the informant himself to the Investigating Officer and, therefore, we have no doubt that this report had been scribed by PW 1 on the dictation of Bhuneshwar Singh (deceased). The same may be treated as a dying declaration, since Bhuneshwar Singh died on 23rd September, 1980. 26. It was then submitted that though it is the categorical case of the appellants that Baliram assaulted the deceased with a garasa, and the witnesses have stated that blood and fallen at the place of occurrence which was washed away by rains, there was no question of bleeding injury being caused to the deceased. 26. It was then submitted that though it is the categorical case of the appellants that Baliram assaulted the deceased with a garasa, and the witnesses have stated that blood and fallen at the place of occurrence which was washed away by rains, there was no question of bleeding injury being caused to the deceased. The injury report as well as the post-mortem report do not support the case of the prosecution that any bleeding injury had been suffered by the deceased. It was, therefore, submitted that the assault by garasa was deliberately introduced to make the offence appear more serious than what it was. Counsel relied upon the decision of the Supreme Court in the case of Hallu and others V/s. State of Madhya Pradesh, AIR 1974 SC 1936 and submitted that it was not permissible for the Court to conjecture that the injury may have been caused by the blunt portion of the garasa, because if the clear allegation is that he was hit on the head with a garasa causing bleeding injury, it cannot be held that the assault was made from the blunt side of the garasa causing as injury. It is no doubt true that the clear case of the prosecution is that the deceased was first assaulted with garasa. In the inquest report, it was stated that the head injury was caused by a garasa. However, in the injury report prepared by the Medical Officer (PW 6) at Koilwar Health Centre, an opinion has been expressed that the injury was caused by a hard and blunt substance. Of course, to a question put in the cross-examination, he stated that such an injury may be caused by the blunt portion of the garasa. In the postmortem report, the Doctor has differed with the opinion expressed in the inquest report and has categorically stated that he did not agree with the inquest report that the injury on the head was caused by garasa. His clear opinion was that the injury was caused by hard and blunt substance. Having regard to the evidence on record, causing of such injury by hard and blunt substance, such as lathi, appears more probable than the injury being caused by garasa. His clear opinion was that the injury was caused by hard and blunt substance. Having regard to the evidence on record, causing of such injury by hard and blunt substance, such as lathi, appears more probable than the injury being caused by garasa. In the postmortem report, the Doctor has found that there was no cutting of the bone of fracture of the skull, from which he came to the conclusion that the injury may have been caused by hard and blunt substance. We shall consider this aspect of the matter later while considering what offence is proved against the appellants. 27. It was then submitted that Bihari was an injured witness, but he was not examined by the prosecution at the trial. Similarly Paltu, named in the First Information Report, was also not examined as a witness at the trial. Counsel drew our attention to the fact that at the time of argument the prosecution submitted that they had been won over. He submitted that such an explanation at the time of argument who wholly irrelevant because the prosecution is bound to examine all the witnesses who may unfold the prosecution case and unfold the truth. It is for the Court to decide whether they have deposed truthfully or appear to have been won over. Learned Counsel, however, conceded that it is not the law that all the witnesses, named in the First Information Report, must necessarily be examined at the trial. 28. In the instant case, we find that the prosecution has examined the other named witnesses in the First Information Report, apart from these two. PWs 1, 2, 3 and 4 are also witnesses named in the First Information Report and it appears to us that even if Bihari and Paltu were examined by the prosecution, they would not have told the Court anything different from what has been stated by these witnesses. We do not find that Bihari and Paltu had any special knowledge of facts to which only they could depose and which was essential to the unfolding of the prosecution case. At best their evidence would have been of repetitive nature. We, therefore, do not place Bihari and Paltu in the category of witnesses whose examination was necessary to unfold the prosecution case, particularly when four other named witnesses have been examined, and there is a dying declaration on record. 29. At best their evidence would have been of repetitive nature. We, therefore, do not place Bihari and Paltu in the category of witnesses whose examination was necessary to unfold the prosecution case, particularly when four other named witnesses have been examined, and there is a dying declaration on record. 29. It was then submitted that the Doctor who conducted the post-mortem examination was not available for cross-examination, and this has caused serious prejudice to the case of the prosecution. The injuries suffered by the deceased may not have been of serious nature, as they were found to be simple in nature. Such injury could not have caused the death of the deceased in normal course. It has come in the evidence of PW 2 that deceased Bhuneshwar Singh could not run away because he was a weak person, though he was not ill. It was, therefore, submitted that in the absence of any evidence on record disclosing the treatment given to the deceased and the immediate cause of his death, it would be dangerous to infer that he might have died of head injury, which otherwise appeared to be simple in nature. It is no doubt true that the Doctors who examined the deceased opined that the injury on the head was simple in nature, but that was subject to the finding in the X-ray report. There is no evidence on record to establish that any X-ray was done and if so, what was the report. No Medical Officer of Ara General Hospital or Patna Medical College and Hospital has been examined to disclose the treatment given to the deceased. In the post-mortem report, no doubt, the Doctor has stated that the cause of death was the head injury, but without anything more it would be difficult to speculate as to whether the deceased died of the head injury or on account of any other complication. Moreover, the opinion of the Doctor conducting the post mortem examination cannot be accepted on its face value in view of the fact that the factor was not available for cross-examination so that the appellants did not have an opportunity of testing his opinion by cross-examining the Doctor. On the basis of the evidence on record, it is not possible to express an opinion either way. It may be that the head injury caused to the deceased resulted in his death ultimately. On the basis of the evidence on record, it is not possible to express an opinion either way. It may be that the head injury caused to the deceased resulted in his death ultimately. It is equally possible that the deceased may have died on account of any other complication, since admittedly he was of weak health. In the absence of cogent evidence on record, the benefit of deficiency of such evidence must go to the accused. The prosecution would have been well advised to examine one of the Doctors who treated the deceased at the Patna Medical College and Hospital, who could have deposed about the treatment given to the deceased and the actual cause of death. The Doctor could have been cross-examined by the defence and the Court would have been in better position to test the correctness of the opinion of the Doctor. 30. We have carefully perused the testimony of PWs 1 and 2 and though they are inimically disposed towards some of the appellants for that reason alone we are not inclined to reject their testimony outrightly, it is the duty of the Court to separate the chaff from the grain and, therefore, in the case of witnesses found inimically disposed towards the accused, it becomes the duty of the Court to critically scrutinise their evidence applying the rule of caution, in such a manner as to rule out the possibility of false implication of innocent persons. There is a tendency in such witnesses to implicate the innocent with the real accused who are the perpetrators of the crime and, therefore, the Court has to keep this reality in mind while appreciating their evidence. Wherever necessary, the Court may seek corroboration from an independent source or objective circumstances. 31. In the instant case, we have already noticed that there was a motive suggested in the First Information Report which was treated as a dying declaration. In the written report, it is stated that the appellants believed that the deceased was responsible for instigating Basgit Sah to file cases against them. It is indeed admitted that Basgit Sah had filed a criminal case against Basawan Sah, his brother, and Banaras Singh and Sheojee Singh, who are also brothers. In the written report, it is stated that the appellants believed that the deceased was responsible for instigating Basgit Sah to file cases against them. It is indeed admitted that Basgit Sah had filed a criminal case against Basawan Sah, his brother, and Banaras Singh and Sheojee Singh, who are also brothers. It has also come in evidence that the wife of Basawan Sah had lodged a complaint against PWs 1, 2 and the deceased in which she had alleged that they had committed rape upon her. In that case cognizance was taken. A revision was preferred by the accused in that case which was pending. In that case also Sheojee Singh, Banaras Singh and Raman Singh (Appellants in Cr. Appeal No. 114/88) were the witnesses, apart from Krishna Singh (Appellant in Cr. Appeal No. 129/88). The pendency of these two cases does show that the deceased and PWs 1 and 2 were inimically disposed towards Basawan Sah and Shivji Singh, Banaras Singh and Krishna Singh. We also find that the appellants in Cr. Appeal No. 129 of 1988, except Krishna Singh, who was a witness in the rape case, do not appear to have anything in common with the appellant in Cr. Appeal No. 129 of 1988. It was, therefore, submitted that even if such occurrence took place, appellants in Cr. Appeal No. 114 of 1988 were falsely implicated because of subsisting serious enmity. 32. The allegation against Sheojee Singh, Banaras Singh and Raman Singh is that they climbed on the platform where the deceased was sitting, and if one has to accept the evidence of PWs all the three fired from a distance of 5-6 steps. Surprisingly, the prosecution case is that all the three shots fired from such close range missed the target and, therefore, no injury was caused either to the deceased or anyone else. Thereafter the deceased was attacked by others, and after receiving a garasa injury he fell down. Even then these appellants made no attempt to assault him, though they were allegedly carrying pistols with them. Having regard to the strained relationship between the parties, and in view of the fact that no injury was caused by firearm to anyone, we are not persuaded to accept that part of the prosecution case in which it is alleged that appellants Raman Singh, Banaras Singh and Sheojee Singh fired at the deceased. Having regard to the strained relationship between the parties, and in view of the fact that no injury was caused by firearm to anyone, we are not persuaded to accept that part of the prosecution case in which it is alleged that appellants Raman Singh, Banaras Singh and Sheojee Singh fired at the deceased. Having regard to the facts and circumstances of the case and the inimical disposition of the witness towards these appellants, we are of the view that their false implication cannot be ruled out, and they are at least entitled to the benefit of doubt. 33. The question then arises as to what role was played by the appellants in Cr. Appeal No. 129 of 1988 and 145 of 1988. So far as these appellants are concerned, the evidence of the witnesses is to the effect that on the exhortation of Ram Pravesh Singh, Baliram gave a garasa blow on the head of the deceased followed by Ravindra Singh, Krishan Singh and Basawan Singh who assaulted the deceased indiscriminately on his back and waist with lathi. It is, no doubt, true that there was only one bruise on the back of the deceased as found by the Medical Officer at Koilwar State Dispensary, but the other injuries on his person do establish that he was actually assaulted with lathi and in the process he received at least three injuries, one on the head, one on the shoulder joint and third on his back. The tendency of the witnesses to exaggerate cannot be overlooked, and at times a witness may not be in a position to notice the exact portion of the body when an injury is caused by a particular assailant, particularly when several assailants assault the victim simultaneously. These exaggerations and embellishments must, therefore, be ignored. We are satisfied that the statement of PWs 1 and 2 can be relied upon they say that these appellants assaulted the deceased Bhuneshwar Singh. The finding of injury on the person of the deceased corroborates their testimony. Even it is held that the injury on the head was caused by a hard and blunt substance as appears to be the medical opinion, that would not make any difference to the case of the prosecution, because if five of the appellants together assaulted the deceased armed with lathis, garasa, etc. Even it is held that the injury on the head was caused by a hard and blunt substance as appears to be the medical opinion, that would not make any difference to the case of the prosecution, because if five of the appellants together assaulted the deceased armed with lathis, garasa, etc. they would be liable for the offence committed by them with the aid of Section 149, IPC, if the facts and circumstances justify the finding that they had acted in pursuance of a common unlawful object. In this case, so far as these appellants are concerned, there can be no doubt that they came together and assaulted the deceased, it is, therefore, not very material as to who caused injury on which part of the body of the deceased, because what was done by them was done pursuant to the common unlawful object. 34. The question then arises as to whether these appellants are guilty of the offence under Section 302 or 302/149, IPC. Having regard to the medical evidence on record, it is not possible for us to categorically record a finding that the injury caused on the head of the deceased was caused by a garasa and that resulted in the death of the deceased. The Doctor, who first examined the injury, opined that the injuries were simple in nature cause by hard and blunt substance. In the post-mortem report also it is found that the injuries were caused by hard and blunt substance and not by garasa. In fact, the Doctor conducting the postmortem examination recorded his dissent with the opinion expressed in the inquest report about the head injury being caused by garasa. It, thus, appears that these five appellants had constituted themselves into an unlawful assembly and with a common object assaulted the deceased with lathis. Three injuries were caused by them, out of which, admittedly, two were simple in nature. So far as the third injury is concerned, there is some doubt whether the injury was grievous, and whether it ultimately resulted in the death of the deceased. There is no allegation against Krishna Singh who was armed with bhala that he used the pointed portion of bhala to caused any injury. The allegation is that he used the lathi portion of bhala to assault the deceased. There is no allegation against Krishna Singh who was armed with bhala that he used the pointed portion of bhala to caused any injury. The allegation is that he used the lathi portion of bhala to assault the deceased. Having regard to the number and nature of injuries, we are of the view that the unlawful object was only to assault the deceased with a view to cause grievous hurt and not to cause his death. Out of the three injuries caused, two were admittedly simple in nature, but the third which appeared to be simple may have caused the death of the deceased, though unintended. Thus, the appellants can be held guilty of the offence under Section 326/149, IPC. In the facts and circumstances of the case, we convict them accordingly and sentence these appellants to undergo rigorous imprisonment for five years each. 35. In the result, Cr. Appeal No. 114 of 1988 is allowed and the appellants Sheojee Singh, Banaras Singh and Raman Singh are acquitted, giving them the benefit of doubt. Cr. Appeal No. 129 of 1988 and 145 of 1988 are partly allowed, inasmuch as the appellants therein are sentenced to five years rigorous imprisonment under Section 326 read with Section 149, IPC. Their conviction under Sections 302/149, IPC is set aside. The conviction of appellant Baliram Singh under Section 302 is also set aside. Their conviction under Sections 148 and 147, IPC is, however, upheld. Sentences are directed to run concurrently. Except Baliram Singh other appellants are on bail. Their bail bonds are cancelled and they are directed to be taken into custody forthwith to serve out the remaining part of their sentence, if any. Cr. A 114/88 allowed Cr. A 129 and 145/88 allowed partly.