Judgment B.P.Singh, J. 1. These three appeals arise out of a common judgment and order of the 2nd Additional Sessions Judge, Bettiah dated 18.4.1994/ 19.4.1994 in sessions trial No. 295 of 1985. The sole appellant in Criminal Appeal No. 226 of 1994 is Sambhu Singh who has been sentenced to two years rigorous imprisonment under Section 324, IPC and has been directed to pay a fine of Rs. 1,000/- and in default to suffer two months rigorous imprisonment. This appellant is alleged to have assaulted Bijali Yadav, PW 1. In criminal appeal No. 252 of 1994, there are two appellants, namely, Jag Yadav and Bali Yadav. They have been sentenced to life imprisonment under Section 302/34, IPC and also to pay a fine of Rs. 3,000/-, and in default to undergo six months rigorous imprisonment. They are said to be the persons who committed the murder of Kewal Yadav. In criminal appeal No. 254 of 1994, there are three appellants, namely, Ambika Yadav, Indradeo Yadav and Rajendra Yadav. All of them have been sentenced to undergo rigorous imprisonment for life under Section 302/34, IPC and to pay a fine of Rs. 3,000/- each, and in default to undergo rigorous imprisonment for six months. These three appellants are said to have committed the murder of Thag Yadav. Ambika Yadav has also been sentenced to seven years rigorous imprisonment under Section 307, IPC as he is said to have assaulted the informant Rekha Yadav with a Bhala in an attempt to murder him. Out of the fine, if collected a sum of Rs. 10,000/- has been directed to be paid to the next of kin of the deceased and a sum of Rs. 5,000/- to the informant, injured Rekha Yadav, PW 3. A sum of Rs. 1,000/- is directed to be paid to injured Bijali Yadav, PW 1. One Prabhu Pathak was also charged of the offence under Sections 323 and 147, IPC for assault on Bijali Yadav, but he has been acquitted of the charges levelled against him. 2. It appears that due care was not taken while framing charges and surprisingly none of the accused were charged of the offence under Section 302, IPC. They were also not charged of the offence under Section 302/109, IPC which appeared to be justified in the facts and circumstances of the case. This fact has been noticed by the Trial Court as well. They were also not charged of the offence under Section 302/109, IPC which appeared to be justified in the facts and circumstances of the case. This fact has been noticed by the Trial Court as well. 3. The occurrence took place on the 16th of November, 1982, Bijali Yadav, PW 1 and Rekha Yadav PW 3 sustained injuries while two others, namely, Kewal Yadav and Thag Yadav succumbed to the injuries inflicted upon them. The earliest account of the occurrence has been disclosed in the information given by Rekha Yadav, PW 3, the informant to Sub-Inspector R.P. Sinha of Ram Nagar Police Station on 16.11.1982 at 21.30 hours at the State Dispensary, Ramnagar which was reduced to writing and has been treated as the fardbeyan in the case on the basis of which a formal first information report was recorded. The informant Rekha Yadav, PW 3 stated that he belonged to village Murla. On the date of occurrence he was going to his village from Ramnagar Bajar along with co-villagers Kewal Yadav (deceased), Gope Yadav, PW 2 and Thag Yadav (deceased) who was his brother. When they reached near the Ramnagar Shiva Temple, he was informed by Mathura Bind and Kishore Kumar Singh that his brother Bijali Yadav had been assaulted with lathis by Jag Yadav and Shambhu Singh, the Sipahis of Ramnagar Raj at the Hind Cinema. Several of the relatives and co-villagers of Bijali Yadav had come to see him. The informant went near the gate of Rajdarbar and persuaded those people who had come from the village to return to the village. Thereafter while the informant along with his companions was standing on the road near the gate of Rajdarbar, he saw Shambhu Singh, appellant, Jai Kant Ojha, and Balkila Yadav near the gate. He questioned them as to why they had assaulted his innocent brother Bijali Yadav. On being so questioned, Shambhu Singh, appellant, and Jaikant Ojha threatened him and asked them to go away. Thereafter, the informant and his companions started moving away. Just then, appellant Ambika Yadav, Jag Yadav, Bali Yadav, Rajendra Yadav and Indradeo Yadav came variously armed with lathies, Bhalas, Garasas and Barchhi and surrounded them. The appellant Ambika Yadav assaulted the informant with Barchhi which hit him on the abdomen and caused an injury. Thereafter, the informant and his companions started moving away. Just then, appellant Ambika Yadav, Jag Yadav, Bali Yadav, Rajendra Yadav and Indradeo Yadav came variously armed with lathies, Bhalas, Garasas and Barchhi and surrounded them. The appellant Ambika Yadav assaulted the informant with Barchhi which hit him on the abdomen and caused an injury. His brother Thag Yadav, deceased, was assaulted by Ambika Yadav and also by Indradeo Yadav and Rajendra Yadav with lathi and Garasa and as a result of the injuries inflicted upon him, Thag Yadav fell down there. The informant along with others ran away towards his village. On the way, he met Bhim Singh and several others who had come running. In their company, he went back to the place of occurrence to see his brother Thag Yadav. By then the assailants had run away. He found his brother Thag Yadav and Kewal Yadav lying injured on the pitch road to the north of the Darbar gate and south of a Khajoor tree. The intestines of Kewal Yadav had come out and he was writhing in pain. On being asked, Kewal Yadav told him that appellants Jag Yadav and Bali Yadav had assaulted him with Bhala. The informant came running to the Police Station and met the I.O. In the meantime, Thag Yadav and Kewal Yadav had been removed to the hospital for treatment on a tractor by the villagers. The occurrence took place at about 8.30 p.m. a little before the Cinema show was over. It appears that the informant also rushed back to the State Dispensary where his information was recorded by Sub-Inspector R.R Sinha at 21.30 hours. Though the witnesses have described it as a hospital or the State Dispensary, we are told that at Ramnagar, there was only a Primary Health Centre which has been described by the witnesses as hospital or dispensary. 4. It appears from the record that the condition of the injured witnesses was serious and, therefore, Dr. S.K. Upadhyay, PW 6 of the Primary Health Centre ultimately referred Thag Yadav and Kewal Yadav to the M.J.K. Hospital at Bettiah, but before that a dying declaration of Kewal Yadav was recorded by Chandradeo Singh, PW 9 who was the Project Executive Officer. S.K. Upadhyay, PW 6 of the Primary Health Centre ultimately referred Thag Yadav and Kewal Yadav to the M.J.K. Hospital at Bettiah, but before that a dying declaration of Kewal Yadav was recorded by Chandradeo Singh, PW 9 who was the Project Executive Officer. He has deposed that on the requisition by the Police, he had recorded the dying declaration of Kewal Yadav at Ramnagar hospital and in his dying declaration, Kewal Yadav had named Balia and Jagwa as his assailants who had assaulted him with Bhala. 5. It will thus appear that initially Bijali Yadav PW 1, the brother of the informant was assaulted, and on protest later the informant as well as Thag Yadav and Kewal Yadav, who were with him, were also mercilessly assaulted. If the prosecution case is to be believed the motive for the occurrence was rather trivial and the appellants acted in a high-handed manner reacting to the protest lodged by the informant. Unfortunately, though many others may have witnessed the occurrence, the prosecution case has been supported only by Bijali Yadav, PW 1, Gope Yadav, PW 2 and the informant Rekha Yadav PW 3. The reluctance of witnesses, who may be called independent, to depose in such cases is a fact of which judicial notice has been taken. In the absence of such witnesses, the Court has to critically scrutinize the evidence of the eye-witnesses who may be related or known to the injured, applying the rule of caution. If their evidence appears to be convincing and truthful, there is no reason to discard the prosecution case merely because other witnesses, who could be described as independent, have not deposed in support of the prosecution case. 6. As noticed earlier, Thag Yadav and Kewal Yadav were referred to the M.J.K. Hospital at Bettiah where they later succumbed to their injuries. Before they were sent to Bettiah, PW 9 Chandradeo Singh was requisitioned by the Police to record the dying declaration of Kewal Yadav. His dying declaration has been proved by Chandradeo Singh PW 9 and has been marked Ext.7. The said statement was recorded at 10.10 a.m. on 16.11.1982. Though not in question answer form, a reading of the dying declaration shows that it was recorded in the words of Kewal Yadav. Kewal Yadav stated in his dying declaration that he had been assaulted with Bhala by Balia and Jagwa. The said statement was recorded at 10.10 a.m. on 16.11.1982. Though not in question answer form, a reading of the dying declaration shows that it was recorded in the words of Kewal Yadav. Kewal Yadav stated in his dying declaration that he had been assaulted with Bhala by Balia and Jagwa. He was coming from the market and four steps from the Raj Gate he was assaulted. He was assaulted when it was dark at about 8.10 p.m. There was quarrel in the village. He could see with only one eye. He did not know anything. Seeing him, some people ran towards him. Seeing him, Jag and Bali ran towards him. There was light and he could identify them. He hid himself at the base of a wall, but those people cut him. 7. A bare perusal of the dying declaration indicates that it was recorded in the language of the deceased and this is explained by the fact that Bali Yadav and Jag Yadav have been mentioned at one place as Balia and Jagwa. 8. The deposition of PW 9 Chandradeo does establish the fact that on requisition by the Police, he came to the hospital and recorded the statement of Kewal Yadav. He read over and explained the statement to Kewal Yadav and then took his left thumb impression on the statement. The said statement was marked Ext. 7. In cross-examination, he stated that the doctor was present in the hospital, but he did not know if any member of the family of Kewal Yadav was present. He did not find Kewal Yadav mentally unfit and, therefore, did not put any question to him to find his mental state, nor did he ask for the doctors certificate regarding his mental state. The witness to the dying declaration Tiwari, was on the varandah and he witnessed the dying declaration. He denied the suggestion that the dying declaration was not that of Kewal Yadav as he was not in a position to give the statement. 9. Bijali Yadav, PW 1 was the first to be assaulted. His injuries were examined by Dr. V.N. Sinha PW 7 on 17.11.1982 at about 3.30 p.m. He found the following injuries on the person of Bijali Yadav. (i) Lacerated wound 2-1/2" x 1/2" x skin deep on the left vortex. (ii) Swelling on left hand 3" x 2". 9. Bijali Yadav, PW 1 was the first to be assaulted. His injuries were examined by Dr. V.N. Sinha PW 7 on 17.11.1982 at about 3.30 p.m. He found the following injuries on the person of Bijali Yadav. (i) Lacerated wound 2-1/2" x 1/2" x skin deep on the left vortex. (ii) Swelling on left hand 3" x 2". (iii) Swelling 2" x 1-1/2 on the right elbow. (iv) Swelling 2" x 1/2" right side of forehead." The X-ray showed fracture of second metacarpal bone of the left hand and the corresponding injury was grievous in nature. Unfortunately in his report, Ext. 5, as also in the course of his deposition, he has not specified the grievous injury. The other injuries were simple in nature. It appears from his deposition that he was posted at M.J.K. Hospital, Bettiah on 17.11.1982 and examined Bijali Yadav on police requisition. The X-ray was not done in his presence and that explains why in his report Ext. 5 he had not mentioned about the grievous nature of one injury. 10. Dr. S.K. Upadhyay, PW 6 examined the injuries of the informant Rekha Yadav PW 3 at about 9 p.m. on the date of occurrence. He found one sharp cut injury on right infraxillary region with tailing of wound 2" x 2" x 3" deep caused by sharp-pointed weapon may be Bhala. The injury was grievous in nature and was caused within 24 hours. In the course of his cross-examination, he stated that he has seen Bhala as well as Barchhi and both could cause penetrating wound. He also stated that Thag Yadav and Kewal Yadav were brought to the Ram-nagar State Dispensary, but he referred them to M.J.K. Hospital, Bettiah as their condition was serious. 11. It appears that after he was removed to the hospital at Bettiah, Thag Yadav succumbed to his injuries and a post-mortem examination on his dead-body was performed by Dr. An-shumali Shukla PW 5 at 11 a.m. on 17.11.1982. He found the following ante mortem injuries on his person. (i) Three abrasions on left leg and knee varying from 1" x 1/2" x skin deep to 2" x 1 /2" skin deep on the upper part of sin (sic) of tuba and knee anterialy. An-shumali Shukla PW 5 at 11 a.m. on 17.11.1982. He found the following ante mortem injuries on his person. (i) Three abrasions on left leg and knee varying from 1" x 1/2" x skin deep to 2" x 1 /2" skin deep on the upper part of sin (sic) of tuba and knee anterialy. (ii) Four abrasions on right arm and fore arm near elbow varying from 1/2" x 1/2" x skin deep to 1" x 1/2" x skin deep to 1" x 1/2" x skin deep with several constitutions and swellings on right arm and elbow and upper part of fore arm. (iii) Lacerated wound 1/2" x 1/2" x bone deep on left arm. On dissection the muscles were found lacerated and there was blood clot. There was fracture of left humerous. (iv) There were four stitched wounds on the scalp of the following description: (a) One stitched wound left to vortex 2" long x scalp deep. (b) One stitched wound on the middle of scalp measuring 3" x scalp deep. (c) Stitched wound just about occipital bone 1" x scalp deep. (d) Stitched wound right to middle line 3" x bone deep. There was clot under scalp with line an fracture of the scalp bone. On further dissection, there was found a clot under the skull and maninges were congested. He opined that death was caused due to head injuries specially injury, (iv)(d). Injuries No. (i), (ii) and (iii) were caused by hard and blunt substance, but on account of the fact that injury No. (iv) had been stitched, he could not give any opinion as to the weapon used for causing such injuries. The injuries were sufficient to cause death and were caused within 24 hours of the examination. 12. . Dr. Nirmal Kumar, PW 8 performed the post-mortem examination on the dead-body of Kewal Yadav who had also succumbed to him injuries after removal to the hospital at Bettiah. He found an ante mortem injury which was in the nature of incised wound near umbicus on left side measuring 3" x 2-1/2" x cavity deep. After opening the wound small intestines were found purported at multiple places and about half litre of blood was found in abdominal cavity. The injuries were sufficient to cause death in ordinary course of nature and could be caused by a Bhala. After opening the wound small intestines were found purported at multiple places and about half litre of blood was found in abdominal cavity. The injuries were sufficient to cause death in ordinary course of nature and could be caused by a Bhala. The post-mortem report was proved by him and marked Ext. 6. 13. The medical evidence on record establishes that the deaths of Kewal Yadav and Thag Yadav were homicidal. 14. So far as the first part of the occurrence is concerned, namely the assault on Bijali Yadav, the sole witness examined by the prosecution in Bijali Yadav, PW 1, the injured himself. In the course of his deposition, he stated that he had gone to Ramnagar Bajar at 2 p.m. on the date of occurrence. At that time, when he reached near the shop of Radheshyam, he noticed that appellant Jag Yadav and one Rudal Yadav were altercating and exchanging abuses. With a view to pacify them he intervened and reprimanded them. Thereafter, he went to the Bajar and attended to his work. At about 7.30 p.m. when he was near the Hind Cinema, he saw appellants Jag Yadav, Bali Yadav, Indradeo Yadav, Ambika Yadav, Rajendra Yadav and Shambhu Singh along with Prabhu Pathak (since acquitted) and Balkali Yadav. They were all armed with lathi, Bhala, Farsa, etc. and surrounded him. Appellant Shambhu Singh assaulted him on his head with his Farsa which resulted in a bleeding injury. He tried to escape, but appellants Jag Yadav and Prabhu Pathak (since acquitted) chased him and assaulted him with lathis while he was running away. He. fell down, but got up and ran towards the Hind Cinema and hid himself in a Cabin. After the assailants had gone away, he along with a few co-villagers proceeded towards his home. While near the Shiv Mandir, he heard some noise and thought that some of villagers had come to see him. However, he found appellant Jag Yadav, Bali Yadav Ambika Yadav, Rajendra Yadav and Prabhu Pathak (since acquitted) near the gate. Seeing them, he ran away and hid himself. In his cross-examination, PW 1 stated that he had no concern with Prabhu Pathak and he did not even know to which village he belonged. The witness further stated that his house was at a distance of 1 km from the place of occurrence. Seeing them, he ran away and hid himself. In his cross-examination, PW 1 stated that he had no concern with Prabhu Pathak and he did not even know to which village he belonged. The witness further stated that his house was at a distance of 1 km from the place of occurrence. The Ramnagar Police Station and hospital were at a distance of about 2 kms to the south of. his village. Ramnagar Bajar itself was at a distance of about 1-1/2" kms from his village. At the time, when he was assaulted he had seen several persons near the shop of Radheshyam where they were taking tea, etc. The persons had come out of the Cinema hall at interval. He was assaulted near the gate of the Cinema hall and on account of the Farsa injury given on his head by Shambhu, there was bleeding from the injury. After the occurrence, he did not go to the hospital or to the Police Station, but claimed to haye been admitted in the Bettiah hospital for 3-4 days. 10-15 injuries were inflicted upon him and there was swelling all over. He claims to have told the Investigating Officer that Jag Yadav and Prabhu Pathak had assaulted him from behind with lathi while he was running away. Rekha Yadav PW 3 is his brother, but he had no concern with Kewal Yadav, deceased. Thag Yadav, deceased, was also his brother. He denied that Gope Yadav, PW 2 was his son-in-law. He also stated that apart from Prabhu Pathak and Shambhu Singh, the other accused belong to village Narayanpur. He had no quarrel with them. After he was assaulted, he came back home at about 8 p.m. The Shiv Mandir was at a distance of about 200 yards from the Cinema hall. When he was being assaulted, Tribhuwan, Shankar Baitha and Ramsharan Yadav were present. Unfortunately, these witnesses have not been examined. 15. It may be noticed that in the first information report lodged by Rekha Yadav, PW 3, Prabhu Pathak was not mentioned as one of the assailants of Bijali Yadav. The Trial Court has, therefore, given the benefit of doubt to Prabhu Pathak. Unfortunately, these witnesses have not been examined. 15. It may be noticed that in the first information report lodged by Rekha Yadav, PW 3, Prabhu Pathak was not mentioned as one of the assailants of Bijali Yadav. The Trial Court has, therefore, given the benefit of doubt to Prabhu Pathak. So far as Jag Yadav is concerned, unfortunately he was not charged of any offence relating to the assault on Bijali Yadav PW 1 and, therefore, though the Trial Court found the deposition of PW 1 to be true, appellant Jag Yadav could not be convicted for the assault of Bijali Yadav. Acting on the testimony of Bijali Yadav PW 1, the Trial Court sentenced and convicted only Shambhu Singh under Section 324, IPC for the assault on Bijali Yadav. 16. PW 2 Gope Yadav and PW 3 Rekha Yadav are the two eye-witnesses who witnessed the second part of the occurrence in which Rekha Yadav PW 3 as well as Thag Yadav and Kewal Yadav were mercilessly assaulted, the latter two succumbing to the injuries after some time.PW 2 Gopa Yadav stated in the course of his deposition that on the date of occurrence at about 8.30 p.m. he was going from Ramnagar Bajar to his home along with Rekha Yadav PW 3 and Kewal Yadav deceased. On the way, they met Kishore Singh who informed them that Bijali Yadav PW 1 had been assaulted by Kishore (appears to be a mistake) and Shambhu. While they were proceeding towards their home, they noticed that several relatives and co-villagers of Bijali Yadav, PW 1 had assembled near Ramnagar Raj Gate. Rekha Yadav PW 3, asked them to return home. Rekha Yadav then asked appellant Shambhu, Jaikant Ojha and Balkila Yadav as to why they had assaulted Bijali Yadav. In the meantime, appellants Jag Yadav, Rajendra Yadav, Indradeo Yadav and Bali Yadav, Am-bika Yadav and Shambhu Singh armed with lathis Bhala and Barchhi surrounded PW 3, Bijali Yadav. Ambika Yadav assaulted Rekha Yadav, PW 3 with his Barchhi causing an injury on his abdomen. Appellants Bali and Jag Yadav assaulted Kewal Yadav with Bhalas as a result of which his intestines came out and he fell down. Thereafter, Rajendra Yadav, Indradeo Yadav and Shambhu Singh assaulted Thag Yadav, deceased. When they attempted to assault this witness, he ran away. Appellants Bali and Jag Yadav assaulted Kewal Yadav with Bhalas as a result of which his intestines came out and he fell down. Thereafter, Rajendra Yadav, Indradeo Yadav and Shambhu Singh assaulted Thag Yadav, deceased. When they attempted to assault this witness, he ran away. In the lengthy cross-examination of this witness, many irrelevant questions have been put to the witness. This witness denied the suggestion that his brother was married to the daughter of Bijali Yadav. In fact, he stated that he has no relationship with Bijali Yadav. He claimed to have come to the Ramnagar Bajar at about 7 p.m. along with some other villagers. He saw Thag Yadav, etc. near the Cinema Chowk. At the time of occurrence, the Cinema show was on. At the gate itself, he had come to know that Bijali Yadav had returned home. He further stated that only he and two others, meaning thereby Rekha and Kewal, were present when the villagers were asked to go back by Rekha Yadav. The occurrence took about 10-15 minutes. At the time of occurrence, a hulla was raised and he had run towards his village and had reached the road near Pahari Tola whereafter he came back to the place of occurrence along with 20-25 persons. He found Kewal Yadav, deceased and Thag Yadav, deceased lying on the pitch road in an injured condition. Both of them were unconscious. The hospital was at a distance of about 200 yards and the Police Station at a distance of about 150 yards from the place of occurrence. He denied the suggestion that he was deposing falsely since he was a relative of Bijali Yadav. 17. Rekha Yadav, PW 3 is the informant as also an injured witness. He stated that on 16.11.1982 at about 7.30 p.m. he was returning to his village. When he was near the Ramnagar Shiv Mandir, he was informed by Kishore Singh and Mathura Bind that Bijali Yadav, his brother, had been assaulted near the Hind Cinema with lathi by appellant Jag Yadav and Shambhu Singh and that on getting the news, his villagers and family members were coming to see Bijali Yadav. He met the villagers and relatives near the Ramnagar Raj gate and requested them to return to the village. He also went with them for some distance. He met the villagers and relatives near the Ramnagar Raj gate and requested them to return to the village. He also went with them for some distance. Thereafter, he along with Gope Yadav, PW 2 Kewal Yadav, deceased and Thag Yadav, deceased, was standing near the Raj gate. He questioned appellant Shambhu Singh, Jai Kant Ojha and BalKila Yadav as to why they had assaulted his innocent brother. On this Shambhu Singh and Jai Kant Ojha threatened them and asked them to go away. Thereafter, they started proceeding towards their village, but appellants Ambika Yadav, Jag Yadav, Bali Yadav, Indradeo Yadav, Rajendra Yadav and Shambhu Singh armed with lathi, Garasa, Bhala and Barchhi surrounded them. Appellant Ambika Yadav assaulted him with his Barchhi which hit him on the right side of his abdomen. His brother Thag Yadav (deceased) was assaulted by Ambika Yadav, Indradeo Yadav and Rajendra Yadav with Barchhi, Garasa and lathi. His brother was injured and fell down. He raised an alarm and ran towards Nepali Tola. There he met several persons including Bhim Singh and with them he came back to the place of occurrence to see his brother Thag Yadav. By the time, he returned to the place of occurrence, the accused had run away. He found that the intestines of Kewal Yadav had come out. On being questioned, Kewal Yadav had told him that Jag Yadav and Bali Yadav had assaulted him with Bhala. Thag Yadav, deceased, was also lying there injured. He rushed to the Police Station and Daroga sent him to the hospital with a constable. When he reached the hospital he found that Kewal Yadav and Thag Yadav were also brought to the hospital. The Police Officer also came to the hospital at about 9.30 p.m. and recorded his statement. He proved the fardbeyan which he got recorded. The P.E.O. of Ramnagar also came to the hospital and recorded the statement of Kewal Yadav. In cross-examination, he stated that Jag Yadav, Shambhu Singh and Prabhu Pathak were Sipahis of the Ramnagar Raj. Apart from Prabhu Pathak and Shambhu Singh, the other accused belonged to his caste. Jag Yadav and Bali Yadav were brothers while Ambika, Rajendra and Indradeo belonged to different families, but were all residents of village Narayanpur. Prabhu Pathak and Shambhu Singh belonged to some other village. Apart from Prabhu Pathak and Shambhu Singh, the other accused belonged to his caste. Jag Yadav and Bali Yadav were brothers while Ambika, Rajendra and Indradeo belonged to different families, but were all residents of village Narayanpur. Prabhu Pathak and Shambhu Singh belonged to some other village. He had no dispute with Shambhu Singh and Prabhu Pathak, nor had he any concern with them. Even with the other accused of village Narayanpur, he had no quarrel before the date of occurrence. Thag Yadav, deceased, was his brother, but he was not related to Kewal Yadav, deceased, though they belonged to the same caste. Thag Yadav and Kewal Yadav, deceased were brought to Bet-tiah by the wife of Thag Yadav and the son of Kewal Yadav, since he was himself injured. In his presence, the two injured were sent to Bettiah. They were at the Ramnagar hospital when his fardbeyan was recorded and were alive. Thag Yadav was unconscious. After his statement was recorded, he went to his village at about 12 in the night after he had been given treatment at the hospital. Before his fardbeyan was recorded, he had not met Bijali Yadav. He met him only on the next day i.e. in his village, since he was living separately. His other brother Bijali Yadav was employed as a Forest guard. He also claimed that Thag Yadav was first assaulted and thereafter Kewal Yadav and he had witnessed the occurrence. This witnessed explained that about 20-25 persons had come from the village on hearing about the assault on Bijali Yadav, PW 1. Amongst those who had come were Lorit Yadav and Thag Yadav, deceased. These two persons did not go back with the other villagers. The night of occurrence was a dark night, but there was sufficient light since there was a lighted bulb at the electric pole. After the occurrence, he had run towards Nepali Basti, but returned with several persons. Those persons had also seen the injured lying on the road. They were lying at a distance of about 5 yards from each other. The witness was categoric in his statement that he was assaulted not with a Bhala, but with a Barchhi which has three sharp points. At the place of occurrence, he noticed that the intestines of Kewal Yadav had come out, but his son Lorit and Mosmat Lakharjiya tied his stomach with a cloth. The witness was categoric in his statement that he was assaulted not with a Bhala, but with a Barchhi which has three sharp points. At the place of occurrence, he noticed that the intestines of Kewal Yadav had come out, but his son Lorit and Mosmat Lakharjiya tied his stomach with a cloth. Thag Yadav was surrounded by his assailants and was assaulted. He fell down. Thereafter when he was assaulted on his head, he first cried out and, thereafter, became unconscious. He was, however, groaning. He could not see how many blows were given to him with Garasa and lathi. He had seen Indradeo assaulting Thag with a Garasa. He had not seen Thag Yadav being assaulted with a Barchhi. At the place, where Thag Yadav had fallen, lot of blood had also fallen on the road. He denied the suggestion that he along with Bijali Yadav, Thag Yadav and Kewal Yadav had fought with a gang of criminals. The witness has been cross-examined at length and many irrelevant questions have been put to him, but there is nothing in his cross-examination to discredit his testimony. Except for a few discrepancies here and there, yards, nothing has been elicited in their cross-examination which may impeach their credibility. It is, no doubt, true that the Investigating Officer was not examined at the trial but I do not find that any prejudice has resultant on account of non-examination of the Investigating Officer. 18. Sri K.N. Choudhary, PW 10 had partly investigated the case and had submitted the charge-sheet. The earlier Investigating Officer Ratneswar Prasad Sinha handed over charge to him on 19.1.1983. 19. From the evidence on record, it appears that earlier in the day at about 2 p.m. PW 1 Bijali Yadav had found appellant Jag Yadav and Rudal Yadav quarrelling and exchanging abuses. He reprimanded then and pacified them. This appears to have enraged appellant Jag Yadav, and this appears to be the reason why later in the evening at about 7.30 p.m., according to the prosecution, Jag Yadav along with others including appellant Shambhu Singh assaulted Bijali Yadav. The occurrence that followed later resulting in two deaths, has its genesis in the earlier occurrence in which Bijali Yadav, PW 1 was assaulted. A trivial incident unfortunately, led to a serious incident in which two persons lost their lives. The occurrence that followed later resulting in two deaths, has its genesis in the earlier occurrence in which Bijali Yadav, PW 1 was assaulted. A trivial incident unfortunately, led to a serious incident in which two persons lost their lives. There is nothing on record to suggest that there was any other reason for the occurrence except a vague suggestion that the prosecution party had fought with a group of criminals and in the course of that incident, some of them were injured. The suggestion is rather vague and is neither substantiated nor probabilised by any material on record. 20. So far as the assaulted on Bijali Yadav, PW 1 is concerned, the injured has himself deposed at the trial. This incident is also corroborated by the fact that the other witnesses, namely, PWs 2 and 3 have stated that they had come to know about the assault on Bijali Yadav PW 1. Though X-ray report subsequently disclosed fracture of the metacarpal bone, this appears to have escaped the notice of the prosecution and no one was charged of the offence under Section 326, IPC. In regard to assault on Bijali Yadav, initially a charge was framed against the appellant Shambhu Singh and Prabhu Pathak who were charged of the offences under Sections 323 and 147, IPC. The charge as against Shambhu Singh was later altered to one under Sections 324 and 148, IPC for having assaulted Bijali Yadav, PW 1 by means of Farsa. Prabhu Pathak had been acquitted by the Trial Court. So far as appellant Shambhu Singh is concerned, the evidence of PW 1 Bijali Yadav establishes the fact that Shambu Singh assaulted him with his Farsa which hit him on his head and the injury started bleeding. The evidence of Dr. V.N. Sinha, discloses that Bijali Yadav, PW 1 had four injuries caused by hard blunt substance. One of them was a lacerated would skin deep on the left vortex and another was swelling on the right side forehead. Apart from this, there were two swellings on left hand and on the right elbow. The X-ray showed fracture of the second metacarpal bone of the left hand. It was submitted that if Shambhu Singh had used a Farsa as alleged the injury on the head would not have been a lacerated wound, but should have been an incised would caused by sharp cutting weapon. The X-ray showed fracture of the second metacarpal bone of the left hand. It was submitted that if Shambhu Singh had used a Farsa as alleged the injury on the head would not have been a lacerated wound, but should have been an incised would caused by sharp cutting weapon. One cannot lose sight of the fact that several persons surrounded Bijali Yadav and started assaulting him and it would have been difficult for Bijali Yadav to notice whether the sharp edge of Farsa or the blunt side hit him on the head. This discrepancy does not discredit the prosecution case, as regards the assault on Bijali Yadav, PW 1 by appellant Shambhu Singh. It is, no doubt, true that this witness has also stated that he was assaulted with lathi by Jag Yadav and Prabhu Pathak. Prabhu Pathak has been given the benefit of doubt since his name was not mentioned in the first information report as being one of the assailants of Bijali Yadav. So far as Jag Yadav is concerned, he was not charged of having caused any injury to Bijali Yadav. The learned Trial Court has noticed this fact and has also observed that the prosecution case as regards the assault by others appeared to be true. However in view of the fact that no charge had been framed against Jag Yadav Section 324 or Section 326, IPC, he could not be convicted. I am, however, satisfied that the conviction of Shambhu Singh under Section 324, IPC is fully justified. Even the non-examination of the Investigating Officer has not prejudiced the case of Shambhu Singh. The only relevant question put to PW 1 Bijali Yadav in this regard was whether he has named Prabhu Pathak and Jag Yadav as his assailants before the I.O. in the course of investigation. It was not suggested to PW 1 that he had not named Shambhu Singh. 21. Kewal Yadav, deceased, is said to have been assaulted by Jag Yadav and Bali Yadav. Apart from the evidence of PW 2 Gope Yadav who deposed that Bali Yadav and Jag Yadav assaulted Kewal Yadav with Bhala, there is also a dying declaration made by Kewal Yadav to Rekha Yadav in the first instance, and the second dying declaration made by him and recorded by PW 9. Apart from the evidence of PW 2 Gope Yadav who deposed that Bali Yadav and Jag Yadav assaulted Kewal Yadav with Bhala, there is also a dying declaration made by Kewal Yadav to Rekha Yadav in the first instance, and the second dying declaration made by him and recorded by PW 9. In both the dying declarations, Kewal Yadav stated that he was assaulted by Bali Yadav and Jag Yadav with Bhala. So far as PW 3 Rekha Yadav is concerned, neither in the first information report nor in the course of his deposition at the trial he has stated that he had himself witnessed the assault on Kawal Yadav. Rekha Yadav, PW 3 has not tried to falsely implicate the caused by stating that he had himself witnessed the assault on Kewal Yadav. It cannot be lost sight of that Rekha Yadav had himself been assaulted in the course of the incident, and the appellants were assaulting his brother as well. He ran away after the assault on him, and, therefore, he may hot have noticed the actual assault on Kewal Yadav. After he came to the place of occurrence, he found Kewal Yadav also injured, and on being questioned by him Kewal Yadav disclosed the names of his assailants. The dying declaration made to Rekha Yadav, PW 3, directly implicates Bali Yadav and Jag Yadav as his assailants. This is further corroborated by the second dying declaration of Kewal Yadav recorded by PW 9 Sri Chandradeo Singh who was the Project Executive Officer and was requisitioned by the Police to record his dying declaration at the Primary Health Centre, Ramnagar. 22. It was submitted on behalf of the aforesaid appellants that the dying declaration is not in question answer form and PW 9 did not even care to get a certificate from the doctor as to whether Kewal Yadav was in a fit state of mind to make a statement. It is, no doubt, true that the dying declaration is not in question answer form, but on perusal of the said dying declaration. I have, no doubt, that the dying declaration has been recorded in the language of Kewal Yadav, that is why he has described his assailants as Balia and Jagwa, meaning thereby Bali and Jag Yadav. It is, no doubt, true that the dying declaration is not in question answer form, but on perusal of the said dying declaration. I have, no doubt, that the dying declaration has been recorded in the language of Kewal Yadav, that is why he has described his assailants as Balia and Jagwa, meaning thereby Bali and Jag Yadav. It is not the law that in every case, if the dying declaration is not recorded in question answer form, it ought to be rejected. The surroundings facts and circumstances have to be taken into account in coming to the conclusion that the dying declaration was, in fact, recorded. Nothing has been suggested to PW 9 which may lead me to infer that he had any particular reason to falsely implicate the aforesaid appellants or that he actually did not record a dying declaration and was deposing falsely. PW 9 is an independent Government official who was requisitioned by the Police to record the dying declaration. The submission that the dying declaration was vitiated on account of the fact that the doctors certificate had not been obtained by the officer regarding the dying declaration prior to his doing so, also does not have force in the facts and circumstances of the case. Counsel for the State has relied upon the judgment of the Supreme Court reported in AIR 1980 SC 1738 and submitted that PW 9 was conscious of the fact that in appropriate cases, the opinion of the doctor may be obtained as to the capacity of the injured to make a dying declaration and yet he did not consider it necessary to do so. I have carefully perused the evidence of PW 9. His deposition is that he did not find that Kewal Yadav was mentally unfit to make a statement and that is why he did not ask the doctor to give his opinion in the matter. It thus follows that finding the injured in a fit state of mind to make the statement, he did not consider it necessary to ask the doctor to give a certificate regarding the mental state of the injured, since he was satisfied that the injured was in a fit mental state and was in a position to make the statement. That is why he did not even consider it necessary to put questions to the injured to test his mental capacity. That is why he did not even consider it necessary to put questions to the injured to test his mental capacity. It must, therefore, be concluded that PW 9 after satisfying himself about the mental state of the injured, considered it unnecessary to get the opinion of the doctor, and he did so consciously. PW 9 is a responsible officer and I find nothing to doubt his testimony Therefore, hold that the aying aeclration made to PW 9 was a dying declaration of Kewal Yadav in which he implicated Bali and Jag Yadav as his assailants. The prosecution case is further supported by the evidence of Gope Yadav, PW 2, who does not appear to have any special connection with the members of the prosecution party, except that he happens to be a co-villager. 23. It was submitted on behalf of the aforesaid appellants that Gope Yadav, PW 2 stated that when he came back to the place of occurrence, he found both Thag Yadav and Kewal Yadav unconscious. There was, therefore, no question of Kewal Yadav making a dying declaration to Rekha Yadav, PW 3. Even if the statement creates a doubt about the making of dying declaration by Kewal Yadav at the place of occurrence, I have no doubt that he was in a position to make a dying declaration at the Primary Health Centre. Moreover, the ocular account given by PW 2 itself establishes that Jag Yadav and Bali Yadav were the assailants of Kewal Yadav. 24. It was then submitted that deceased Kewal Yadav had suffered only one incised wound near umbicus and, therefore, both Bali Yadav and Jag Yadav could not have assaulted, as that would have resulted in at least two injuries. The conviction of these appellants is with the aid of Section 34, IPC. PW 2 Gope Yadav had stated that Bali and Jag assaulted Kewal Yadav with Bhala. His evidence also indicates that there two appellants took active part in assaulting Kewal Yadav. This is supported by the statement made by Kewal in the dying declaration where he stated that on seeing him Jag and Bali Yadav ran towards him, they cut him. These facts clearly justify the conviction of both the appellants with the aid of Section 34, IPC. This is supported by the statement made by Kewal in the dying declaration where he stated that on seeing him Jag and Bali Yadav ran towards him, they cut him. These facts clearly justify the conviction of both the appellants with the aid of Section 34, IPC. In fact, if a charge under Section 302 read with Section 149 were framed, the Court could have no difficulty in convicting all the appellants under that section. However, in the absence of such a charge, the conviction of the aforesaid two appellants under Section 302, IPC with the aid of Section 34, IPC must be upheld. 25. We are now left with the assault on Thag Yadav. PW 3 Rekha Yadav, the informant in the first information report had stated that his brother Thag Yadav had been assaulted by Ambika Yadav and by Indradeo Yadav and Rajendra Yadav with lathi and Garasa. The injuries found on Thag Yadav by Dr. Anshumali Shukla, PW 5 does corroborate the prosecution case, though he has stated that he could not give any opinion as to the weapon used for causing four injuries on the scalp, since those wounds had been stitched. Counsel submitted that injuries (i) to (iii) found on the person of Thag Yadav could have been caused by hard and blunt substance and it is not known what weapon was used to cause the injuries on the scalp. Ambika Yadav was armed with Barchhi and none of the injuries can be said to have been caused by Barchhi. Indradeo Yadav and Rajendra Yadav were armed with lathi and Garasa. In the course of his deposition as well, PW 3 Rekha Yadav stated that Thag Yadav was assaulted by Ambika Yadav, Indradeo Yadav and Rajendra Yadav. Gope Yadav, PW 2, however, stated that Thag Yadav was assaulted by Rajendra Yadav, Indradeo Yadav and Shambhu Singh. It thus appears that of the two eye-witnesses examined, one does not name Ambika Yadav as the assailants of Thag Yadav, deceased. As noticed earlier, no charge has been framed under Section 302 read with Section 149, IPC, and, therefore, the prosecution has to make out a case under Section 302/34, IPC only. It thus appears that of the two eye-witnesses examined, one does not name Ambika Yadav as the assailants of Thag Yadav, deceased. As noticed earlier, no charge has been framed under Section 302 read with Section 149, IPC, and, therefore, the prosecution has to make out a case under Section 302/34, IPC only. It may at times be not possible for a witness to notice as to who had assaulted whom and with what weapon and on which part of the body Moreover, these witnesses were deposing more than five years after the occurrence. Even so, if out of two eye-witnesses, one has not stated about the participation of Ambika Yadav in the assault on Thag Yadav, in my opinion, he is at least entitled to the benefit of doubt, and particularly so because no injury caused by Barchhi on the person of Thag Yadav, deceased has been found. No doubt, Counsel for the State submitted that on account of some of the wounds being stitched, the doctor could not give his clear opinion, but the possibility cannot be ruled out that those injuries were caused with a Barchhi. That may be so, but since Gope Yadav has not implicated Ambika Yadav in the assault on Thag Yadav, in my opinion, he, at least, deserves benefit of doubt. The case is against Rajendra Yadav and Indradeo Yadav is consistent and I find no reason to interfere with the finding of the Trial Court. 26. This leaves me with the assault of informant Rekha Yadav, PW 3. The consistent evidence of PW 3 Rekha Yadav corroborated by his statement in the first information report is that he was assaulted with a Barchhi by Ambika Yadav. PW 2 Gope Yadav has also stated that it was Ambika Yadav who assaulted PW 3 Rekha Yadav with a Barchhi in his abdomen. The evidence on record being consistent, it cannot be doubted that it was Ambika Yadav who assaulted Rekha Yadav, PW 3 on his abdomen with a Barchhi in an attempt to commit his murder, having regard to the nature of injury, the weapon used and the part of the body on which the injury was inflicted. His conviction under Section 307, IPC is, therefore, fully justified. 27. In the result, criminal appeal Nos. 226 of 1994 and 252 of 1994 and dismissed. His conviction under Section 307, IPC is, therefore, fully justified. 27. In the result, criminal appeal Nos. 226 of 1994 and 252 of 1994 and dismissed. Criminal appeal No. 254 of 1994 is partly allowed and appellant Ambika Yadav is acquitted of the charge under Section 302/34, IPC. His conviction and sentence under Section 307, IPC is, however, confirmed. Criminal Appeals 226/94 and 252/94, dismissed; Criminal Appeal 254/94 partly allowed.