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Allahabad High Court · body

2000 DIGILAW 631 (ALL)

Mehar Ban Girwar v. State of U. P.

2000-04-27

J.C.GUPTA, S.K.AGARWAL

body2000
S. K. AGARWAL, J. ( 1 ) THIS appeal was filed by as many as 44 appellants. All the appellants were convicted and sentenced under Section 323/149, I. P. C. for one years R. I. and to life imprisonment under Section 302/149, I. P. C. Appellants Meharban, Babu, Bahadur, Nathu, Girdhari Lal, Bhagiarth, Gopi, Dayaram, Vijay, Darbari Singh, Ratan s/o Kaddey and Ratan s/o Khet Singh were also convicted under Section 148, I. P. C. and sentenced to three years R. I. All of them were also convicted under Section 302/149, IPC and sentenced to life imprisonment. ( 2 ) APPELLANTS Komal, Anand Kumar, Guman, Kanhai, Sukh Singh, Panchu, Dasrath, Chittar, Uttam, Bhagwant, Kishore, Kashiram, Jhallau, Ashok, Gulzari, Lotan, Ganiya, Sura, Dhowan, Malkhan, Ratan s/o Malkhan, Keshav, Kashiram, Mohan Singh, Hamira, Hathi, Dhan Singh, Ghasi, Dhan Prasad, Kapoor Chand, Man Singh, Ratan s/o Imrat and Jawahar were also convicted under Section 147, I. P. C. and sentenced to one years R. I. All the sentences of the appellants are to run concurrently. ( 3 ) OUT of the convicted appellants, Sukh Singh, Jhallu, Ganiya, Malkhan, Ratan s/o Malkhan, Babu, Ratan s/o Kaddey and Ratan s/o Chet Singh have already died during the pendency of this appeal. Their appeals in the circumstances abate. ( 4 ) THE prosecution case as available from the evidence is that on 4-5-76 the two deceased Umrao and Juggey, residents of Babhauri after taking their break fast had gone to Madawara market. At about 12. 00 or 12. 30 P. M. they came back from there by a bus. In their Khalihan underneath a neem tree they were sitting. Gajraj PW-4, Gulab Rani PW-2 (Wife of Umrao) and Kirat were also present in the vicinity. Kirat thereafter had taken his cattle to the village pond. Smt. Gulab Rani and her son Gajraj went to drink water in the hutment of Gore Lal. When she was drinking water, Umraos daughter Phulbai came there and informed her mother (Gulab Rani) that a large number of persons had collected in the baithak (a big room to be ued as an assembly hall) of Modely. They are holding guns, lathis, axe and ballams etc. They were saying that Umrao and Juggey had come, let us kill them. Hearing this, Gajraj and Smt. Gulab Rani came out of the Madai. They saw these persons coming towards them from three sides. They are holding guns, lathis, axe and ballams etc. They were saying that Umrao and Juggey had come, let us kill them. Hearing this, Gajraj and Smt. Gulab Rani came out of the Madai. They saw these persons coming towards them from three sides. Ratan resident of Ratanpur was standing with gun on the road leading to the school another Ratan stood on the road leading to Chittar and blocked the passage. Ratan Modely was exhorting other accused. Both the mean were standing with guns, to assault if any of their family or others come forward to rescue the two deceased. In all 44 accused persons came there. ( 5 ) OUT of above 44 persons Nathu, Meharban, Gopi, Bahadur, Bhagirath Girdhari and Babu, in all seven, were armed with axes. Darbari, Dayaram and Vijay were armed with ballams. Ratan resident of Ratanpur and Ratan Modely were armed with guns. Rest of the appellants, 32 in numbers were armed with lathi. All of them started to assault Umarao and Juggey Pradhan with axes, lathi and ballams underneath the neem tree. When Smt. Gulab Rani, Gajaraj and Gorey Lal appeared to save them, they were also assaulted by some of the accused persons, Gajraj was assaulted by Sukh Singh, Uttam, Jawahar, Girdhari and Ratan r/o Madawra with lathi. Gulab Rani was assaulted by Uttam and Bahadur with lathi and axe respectively. In the midst of assault Umrao somehow managed his escape towards the village. He was chased and thrown on the ground by Meharbah, Bhagirath, Gopi, Dhan Prasad, Ganiya and Sura and he was assaulted by them with axes and lathis. ( 6 ) IN the course of the assault Mulchandra, Nathu. Panchey, Lakshman, Rammu and Khuman came to the spot and intervened. Lakshman asked the assailants, "they have already killed two, will they kill the whole family?" Upon this the assailants ran towards the village. While running away Bahadur turned back and struck a blow of axe on the head of Juggey. Thereafter all of them had run away. ( 7 ) IN the assault two persons lost their lives. They are Umrao and Juggey. Two persons of their family Gulab Rani, Gajraj and Gorey Lal, had sustained injuries. ( 8 ) THE FIR of this incident was lodged by Kirat (PW-5) at Police Station Madawra orally at 2. 35 P. M. The same is Ext. Ka-4 on record. ( 7 ) IN the assault two persons lost their lives. They are Umrao and Juggey. Two persons of their family Gulab Rani, Gajraj and Gorey Lal, had sustained injuries. ( 8 ) THE FIR of this incident was lodged by Kirat (PW-5) at Police Station Madawra orally at 2. 35 P. M. The same is Ext. Ka-4 on record. ( 9 ) THE autopsy was conducted on the person of Umrao on 6-5-1976 at 10. 00 A. M. by Dr. D. R. Prabhakar. He found following ante mortem injuries on his person :- 1. Vertical Incised wound 1-1/2" x 1/4" X bone deep left side of midline of forehead. Direction from above downward (paper torn ). 2. Lacerated wound 2" X 1/4" Bone deep right side of midline of head in front. Margins are abraded. 3. Incised wound 1" X 1/4" Bone deep upper (paper torn) ear, on the head Direction below upper (paper torn ). 4. Incised wound 1" X 1/4" Bone deep on the Right side of forehead. Direction from forward. 5. Lacerated wound 4-1/2" X 1/8 bone deep right side of head 4-1/2" above right ear underlying bone (paper torn ). 6. Abrasion 3" X 2" back of left arm below the axilla. 7. Abrasion 1" X 3/4" back of right arm 2 below (paper torn ). 8. Abrasion 1-1/4" X 3/4 back outer side of right wrist. 9. Abrasion 2" X 1-1/2 front of right arm at (paper torn ). 10. Abrasion 1-1/2" 1/2 back of outer side right thigh lower 1/4th.>11. Abrasion 1/4" X 1/4" outer side of Rt. Knee (paper torn ). 12. Abrasion 4" X 2-1/4" back outer side of right leg lower half. 13. Multiple Abrasion in an area 2" X 2" (paper torn) left Knee. 14. Incised wound 7/8" X 1/4" X bone deep (paper torn) leg, at its lower half direction (paper torn ). 15. Incised wound 3/4" X 1/4" bone deep on the inner (paper torn) leg at its lower half. 1/2 inside (paper torn ). 16. Abrasion 5" X 1/1/2" on the back and outer and inner (paper torn) left leg at its lower 1/4th. 17. Abrasion 1-1/2 X 1/2" on the left back upper (paper torn ). ( 10 ) UNDERNEATH injury No. 1 on the left front of the forehead bone was found fractured in an area of 1-1/2 X 1/4 cm. 16. Abrasion 5" X 1/1/2" on the back and outer and inner (paper torn) left leg at its lower 1/4th. 17. Abrasion 1-1/2 X 1/2" on the left back upper (paper torn ). ( 10 ) UNDERNEATH injury No. 1 on the left front of the forehead bone was found fractured in an area of 1-1/2 X 1/4 cm. Underneath injury No. 5 depressed and commuted fracture was detected. The right parietal and temporal bone were also found fractured. The anterior fossae underneath injury No. 5 was found broken in an area of 1-1/2" and there were several linear fractures in the back of the skull. Underneath injury No. 5 also a fracture of wall was noted. The stomach was found empty. In the intestine faecal matter was present. The deaths occurred due to shock and haemorrhage as a result of injuries caused to his person. ( 11 ) THE same doctor had conducted the autopsy on the person of Juggey on the same day at 8. 30 P. M. ( 12 ). The following ante mortem injuries were found on his person : 1. Incised wound 1-5/8" 1" X bone deep on the left forehead 1/2" above outer end of left eye brow under lying bone fractured. Direction from outer to inner side and upward. 2. Incised wound 2" X 1/6" X bone deep right side of head. 4" above and behind right ear. Direction below upwards. 3. Contused wound 1" X 1/8" X bone deep (underlying bone fractured) on left head 3-1/2 above and behind left ear. 3. Contusion 2" X 1" left side of head 2" X 1", just behind and above upper end of left ear. 4. Contusion 2" X 1" left side of head 2" X 1" just behind and above upper end of left ear. 5. Large eccheymosis area 9" X 6". . . ? The midline of chest back on both sides, at its lower half. 6. Incised punctured wound 3/8" X 1/8" X 1/2" on the back and inner side of left wrist. Direction upward inward and forward. 7. Incised wound 5/8" X 1/6" X muscle deep outer side of left leg lower 1/4th. Direction below upwards. 8. Incised punctured wound 3/8" X 1/6" X bone deep. 1/2" in front of Injury No. 7. Direction inwards and upward. Direction upward inward and forward. 7. Incised wound 5/8" X 1/6" X muscle deep outer side of left leg lower 1/4th. Direction below upwards. 8. Incised punctured wound 3/8" X 1/6" X bone deep. 1/2" in front of Injury No. 7. Direction inwards and upward. Dired blood is present on the left ankle in front and inner side of left foot in the contiguous area. ( 13 ). In the internal examination depressed and commuted fracture was found on the front of the head. The left parietal bone was also found broken. Near commuted fracture u shaped was detected by the doctor and was connected with the parieto temporal gerion. The parietal bone was found open in its fractured portion in a considerable width. The left middle was also found broken. Stomach was empty. The intestine contained faecal matter. The death in his opinion was the result of shock and haemorrhage as a result of injuries sustained by him. ( 14 ) GAJRAJ injured was examined by Dr. O. P. Chaddha on 5-5-1976. He had sustained as many as 18 injuries. All his injuries were caused by blunt weapons. He did not sustain any injury of sharp edged weapon. His injury report is exhibit Ka-1. ( 15 ). The injuries of Gulab Rani were examined by Dr. D. R. Prabhakar on 5-5-1976 at about 7. 00 A. M. Four injuries were found on her person. One of which was cause with a sharp edged weapon on her head. The rest of the injuries were caused by blunt object. Injury report is Ext. Ka-2. Injury No. 1 was kept under observation and X-ray was advised by the doctor. The doctor had opined that these injuries were possible to have been caused at 1-1. 30 P. M. ( 16 ). Gorey Lal injured was examined by Dr. O. P. Chadha on 5-5-1976 at 7. 30 A. M. He had sustained only one injury which was caused by a lathi blow on his back. It was found to be simple. The duration was reported about a day old. His injury report is Ex. Ka-3 on the record. ( 17 ) THE prosecution in order to establish its case had examined Gulab Rani (PW-2), Gajraj (PW-4), Kirat (PW-5 ). Rest of the witnesses Dr. O. P. Chaddha (PW-1), Prem Narain Mishra, constable (PW-3), Govind Das (PW-7 ). The duration was reported about a day old. His injury report is Ex. Ka-3 on the record. ( 17 ) THE prosecution in order to establish its case had examined Gulab Rani (PW-2), Gajraj (PW-4), Kirat (PW-5 ). Rest of the witnesses Dr. O. P. Chaddha (PW-1), Prem Narain Mishra, constable (PW-3), Govind Das (PW-7 ). Ghan Shyam Das (PW-8), Dhrav Prasad, (PW-9), Latkan (PW-10), Investigating Officer Ran Veer Singh (P-12) and Uma Shanker Tiwari (PW-13) were examined as formal witnesses. Apart from this chemical examination report was also brought on record. ( 18 ) OUT of the eye-witnesses examined in this case Gulab Rani (wife of the deceased) and Gajraj (son of the deceased) are injured witnesses. Kirat is brother of the two deceased. He is informant. He had orally dictated the FIR to the Head Constable on 4-5-1976 at 2. 30 P. M. He had proved the FIR as Ext. Ka-4 on record. ( 19 ) IN this case some blood stained arms were also recovered from the arrested accused persons. Appellant Darbari was arrested and in the search of his house blood stained ballam was recovered. It was wrapped in cloth and sealed. The recovery memo of the same is Ext. Ka-10. The recovery was conducted by Megh Singh, A. S. I. He was present at the time of registration of the case at the police station on 4-5-1976. Since the incharge of the police station Ran Veer Singh was under transfer at that time, he took over the investigation of the case. He reached the spot of occurrence and prepared the inquest memo of Juggey which is Ext. Ka-13. He had also collected the blood stained earth and simple earth from the spot throgh memo Ext. Ka-14. These documents were proved by him. He had also prepared the inquest memo. Ext. Ka-15 of deceased Umrao. He had also proved the recovery memo of blood stained earth and simple earth from near the dead body of Umrao and Juggey. He also proved all the relevant papers pertaining to other recovery. He had also recorded the statement of witness Kirat. He had sent Smt. Gulab Rani, Gorey Lal and Gajraj with Chaukidar for medical examination to Madawra Hospital. He had also arrested some of the appellants on 5-5-1976 and effected the recovery of blood stained ballam from Darbaris house. He had also arrested appellant Bahadur. He had also recorded the statement of witness Kirat. He had sent Smt. Gulab Rani, Gorey Lal and Gajraj with Chaukidar for medical examination to Madawra Hospital. He had also arrested some of the appellants on 5-5-1976 and effected the recovery of blood stained ballam from Darbaris house. He had also arrested appellant Bahadur. Thereafter he had lodged them at police station in the lockup. The investigation of this case was taken over on 5-5-1976 at 1. 45 P. M. by S. H. O. Ran Veer Singh (PW-11) from him. ( 20 ) APPELLANT denied the allegations levelled against them by the prosecution. They had claimed that the incident had not occurred at the time and in the manner alleged by prosecution and they have been falsely involved in the present incident on account of enmity in connivance with police. Appellant Darbari had stated that he was Postmaster at Bamhauri. On 4-5-1976 there was an inspection conducted at his Post Office by Shri Bhagwan Swarup, Overseer. On the same day the Investigating Officer reached there and took him into custody in his presence. He had picked up ballam from post office. Shri Bhagwan Swarup, Overseer has sent a report of this event to his superiors. Appellant Ratan son of Khet Singh had stated that on 4-5-1976 none had collected in his Baithak. Rest of the appellants denied the incident and their participation in it. From the side of the defence Bhagwan Swarup (DW-1) was produced in the evidence. ( 21 ) SO far as the incident is concerned, it cannot be doubted for the reason that it is being supported by two injured witnesses. Three persons had suffered injuries in this incident. Out of them Gulab Rani and Gajraj had appeared in Court and deposed effectively enough to establish the correctness of the factum of the death of Umrao and Juggey in the incident by violence. This is further borne out from the fact that the inquest memos were promptly prepared and the dead bodies were dispatched immediately thereafter from the spot. Blood was also found around the two dead bodies. The post-mortem examination reports of the two injured deceased further establish that they had met a homicidal death. This is further borne out from the fact that the inquest memos were promptly prepared and the dead bodies were dispatched immediately thereafter from the spot. Blood was also found around the two dead bodies. The post-mortem examination reports of the two injured deceased further establish that they had met a homicidal death. Thus from these facts and circumstances the murder of the two at the alleged place of incident i. e. in the Khalihan underneath neem tree and at the time as alleged by the prosecution is proved beyond any doubt. ( 22 ) THE defence has challenged that the incident had not occurred at the time as alleged by the prosecution. Their claim is that it had taken place during early hours of the morning. This assertion of the defence is based mainly on the ground that the stomachs of the two deceased persons were found empty and the intestines were containing faecal matter and gases. The second argument is that the medical evidence is wholly inconsistent with the eye-witness account. The witnesses are highly interested, partisan and related. The last argument is that the learned Sessions Judge had made no attempt to separate the grain from the chaff while convicting all the appellants, enmasse, under Section 302, I. P. C. Their individual roles had not been taken into consideration. The contention is that there were three ballams used but there were only two injuries which can be attributed to two ballams blows at the most. The other contention in this regard is that some of the accused persons were very young. They were entitled to get the benefit under the Children Act and in the last the defence counsel argued that the evidence is partly reliable and partly not reliable. No doubt the witnesses examined in this case are partisan and related. The law however does not call for rejection of their testimony out right for this reason alone. The settled law is that if their evidence is found trustworthy it can be relied upon. Undoubtedly this requires examination of their evidence with great caution and care. ( 23 ) THE prosecution has examined two of the three injured witnesses, Gulab Rani and Gajraj. Taking into consideration the nature of their injuries, it will be wholly impossible for as to discard the factum of their presence. Undoubtedly this requires examination of their evidence with great caution and care. ( 23 ) THE prosecution has examined two of the three injured witnesses, Gulab Rani and Gajraj. Taking into consideration the nature of their injuries, it will be wholly impossible for as to discard the factum of their presence. Their injuries cannot be called under any circumstance to be either self inflicted or suffered through any friendly hand. Number of their injuries such as injury Nos. 1, 4, 8, 9, 10, 11, 12, 15, 16 and 17 of Gajraj and 2 injuries of Gulab Rani give a clear picture of the intensity and nature of the assault. Examination of the injuries Nos. 15, 16 and 17 clearly indicate that Gujraj was also beaten while fallen on the ground. ( 24 ) SO far as injuries of Gulab Rani are concerned, she had sustained one cut wound 5 cm (max.) on left side of the head medial and above root of nose and wound was found to be bone deep. She had also a contusion, reddish, in an area of 7 x 3. 5 cm on the right palm from root of right index finger up to the wrist joint and another reddish contusion in the size of 14 x 2. 5 cms on left scapular region and reddish contusion in an area of 9 x 2 cm on left scapular region medial end being 6. 1/2 cm from midline. So these injuries on her person under no circumstances and by no stretch of imagination can be said to have been manufactured or self suffered. The injury on palm shows clearly that she tried to resist the assault on her person. The only criticism that has been levelled against them by the defence is that they were sent for medical examination next day. Both injured were examined on 5-5-1976 at 7. 00 and 7. 30 a. m. and third (not produced) at 6. 00 a. m. on the same day. They were taken to hospital by Chaukidar of the village. The FIR in this case was lodged at 2. 35 p. m. on 4-5-1976 by Kirat (PW 5 ). The medical opinion is that the duration of the injuries was about a day. We do not find any fault with their medical examination in the morning and the evidence of these injured persons cannot be discarded on this ground. The FIR in this case was lodged at 2. 35 p. m. on 4-5-1976 by Kirat (PW 5 ). The medical opinion is that the duration of the injuries was about a day. We do not find any fault with their medical examination in the morning and the evidence of these injured persons cannot be discarded on this ground. The motive of the murder and the implication of such a large number of persons has also been challenged. In this context the total number of injuries sustained by five persons, two deceased and three injured assume significance. ( 25 ) UMRAO had sustained in all 17 injuries out of which three were incised wounds. All the injuries of sharp edged weapon were on the forehead right and left and on the back of his head behind midline right ear. Apart from these three injuries of sharp edged weapon he had also sustained two blunt weapon injuries on the head. The other two punctured incised wound were on his legs. Both of them were bone deep. Rest of the injuries on the person of the victim were abrasion on thigh, knee, legs and on the back of outer and internal left leg. The number of abrasions upon the person of deceased Umrao further go a long way to corroborate the prosecution case that when in the midst of assault he started to run towards the village he was thrown down on the ground and assaulted by as many as six appellants Meharban, Bhaghirath, Gopi, Dhan Prasad, Ganiya and Sura in front of beda of Gulzari and he was killed by lathis and axes. An examination of incised wound clearly reveals that this deceased had sustained one incised wound 1" x 1/4" x bone deep on the left by midline of the forehead direction above, the second incised wound is on the head at the right ear region. The direction is the same. The third incised wound is also on the right side of forehead direction from behind forward. The two lacerated wounds are on the right side of the head. This leaves no room for any doubt about the common object of the assembly. ( 26 ) A perusal of the statement of Dr. D. R. Prabhakar (PW 6) clearly reveals that the head of the deceased was badly damaged. Most of the bones of the head were fractured. This leaves no room for any doubt about the common object of the assembly. ( 26 ) A perusal of the statement of Dr. D. R. Prabhakar (PW 6) clearly reveals that the head of the deceased was badly damaged. Most of the bones of the head were fractured. The fractures were extensive. Apart from it, depressed and commuted fracture was also noted under injury No. 5. Several linear fractures were also caused. Thus these injuries of sharp edged weapon could be possibly by axes. So far as injuries Nos. 3, 14, 15 and other two incised wounds on the legs are concerned, they could be of ballam. It will be appropriate to mention here that when any assault by a large number of persons is launched it becomes impossible for witnesses to ascertain and define as to which injury was caused by whom amongst the assailants and how many of them actually could lay their hands on their victims. Normally only those who are in the forefront successfully participate. These who are behind them do not get much of opportunity though present there. In the present incident two persons have been brutally killed, one of them when he managed to escape was thrown down and assaulted. Three injured had also sustained as many as twenty-five injuries. All this happened in a short span of time and that too against wholly defenceless persons. The witnesses become overzealous and exaggerate by specifying blows to individual accused sometimes. ( 27 ) JUGGEY Pradhan had sustained as many as 8 injuries. Out of them injury Nos. 1, 2, 6 and 7 are incised wounds varying in dimension. Injury No. 1 is in the size of 1-5/8" x 1" bone deep on the left forehead, above outer end of left eye brow under lying bone were fractured. Injury No. 2 is of the dimension of 2" x 1/6 x bone deep on the right side of the head, 4" behind right ear. Injury No. 6 is punctured wound in the size of 3/8" x 1/8" x 1/2" on the back of inner side of left wrist. Injury No. 7 is also another incised wound of 5/8" x 1/6" x muscle deep on the leg. Injury No. 8 is incised punctured wound in the dimension of 3/8" x 1/6" x bone deep just 1/2" in front of injury No. 7. Injury No. 7 is also another incised wound of 5/8" x 1/6" x muscle deep on the leg. Injury No. 8 is incised punctured wound in the dimension of 3/8" x 1/6" x bone deep just 1/2" in front of injury No. 7. So in our opinion injury Nos. 6, 7 and 8 are the result of ballam whereas injury Nos. 1 and 2 are the result of axes. Underneath injury No. 1 commuted fracture was found in an area of 3 x 2-1/2". Under two different wound on the head injury Nos. 3 and 4, also fractures were detected and it was found to be a commuted fracture. It is in "shoe" shape. The fracture had gone almost from one end to another end. This must be the result of lathi blows on the head. The Doctor had stated in his cross-examination that out of eight injuries of deceased Juggey six were on the left side. He had further stated that all the incised wounds sustained by Juggey are going upward. He had further admitted that two punctured wounds of Juggey were on the non-vital part. He had further admitted that there is no punctured injury on the person of Umrao. Out of 17 injuries 10 were abrasions. Out of injuries sustained by him injury Nos. 3 and 4 are upward in direction. He had admitted that the abrasions were caused due to friction on hard surface. He further admitted that the stomachs of the two deceased were empty and the intestines contained faecal matter. ( 28 ) IT has been suggested that they were assaulted during some night hours. We are not prepared to accept this contention of the defence. The injuries do not corroborate this suggested time of occurrence. The mere fact that the deceased were empty stomach at the time of incident cannot be utilised as conclusive proof in support of the contention. There is positive evidence that these two deceased went to market after having their breakfast at about 6 a. m. The defence has not challenged this fact. They had not bothered or dared to probe the witnesses any further on the point. The prosecution evidence is consistently the same from FIR to Court on this part. There is positive evidence that these two deceased went to market after having their breakfast at about 6 a. m. The defence has not challenged this fact. They had not bothered or dared to probe the witnesses any further on the point. The prosecution evidence is consistently the same from FIR to Court on this part. There is nothing on record to indicate that the deceased persons after they had left their house had taken any thing up to the time of the incident. Since there has been a gap of about 6 hours from the last ingestion, the food particles must have left the stomach, before their death. ( 29 ) SO far as two injured are concerned they were examined by Dr. O. P. Chaddha and we do not find anything in his cross-examination from which any adverse inference as suggested by the defence may be drawn. He has stated that all the three injured persons were brought to the hospital by Chaukidar Abdullah Khan. No doubt he has admitted that the injuries of Gajraj from 1 to 5 and 12 and 13 were not on vital part. Injury No. 14 on the knee and abrasion may occur as a result of friction, but no where in cross-examination any suggestion has been given to the witnesses that these injuries were self sustained or manufactured. No such suggestion was given even to the doctor that he has prepared false reports. ( 30 ) IN these circumstances it is impossible for us to discard the testimony of these witnesses and the prosecution case on this score that they were examined in the morning. The explanation offered is that doctor was not available at the hospital during night hours. The doctor has not been cross-examined on the point his presence or absence during night. ( 31 ) SO far as the argument that the incident could have taken place during early hours of the morning and not at 1. 00-1. 30 p. m. during the day is concerned for reasons discussed above we find this argument wholly untenable and accordingly we reject it. ( 32 ) THE evidence of witnesses strengthens fully our conclusion. Gulab Rani states that her husband and her Jeth Juggey Pradhan had left for Madawra market in the morning after taking their breakfast and they had come back to the village by bus. They arrived at 12-12. ( 32 ) THE evidence of witnesses strengthens fully our conclusion. Gulab Rani states that her husband and her Jeth Juggey Pradhan had left for Madawra market in the morning after taking their breakfast and they had come back to the village by bus. They arrived at 12-12. 30 p. m. She had also claimed that she was working in the Khalihan. Kirats presence is also admitted. She claims that he had gone towards pond with the cattle before arrival of accused persons. She had very categorically replied to the defence suggestion that there was no need for her to be present in the Khalihan. Her reply is that no doubt her grain was lifted but the chaff was still lying there in the Khalihan and so she was present. Chaff is generally collected and stored by women in villages. With regard to coming of Phoolbai who conveyed the information of assembly of such a large number of persons with weapons in front of the house of Ratan Modely to her in Khalihan, we feel that it is not improbable. She is a child and is likely to come to her mother. She was initially at the house but had gone to the Khalihan from her house because of her mother being there. She was thrown a suggestion by the defence that after return of Umrao and Juggey, she, Gajraj and Kirat had also sat down underneath neem tree. She denied the suggestion and said that since Juggey was her Jeth therefore she could not sit there. This clearly indicates about their presence. She had further stated in cross-examination that her statement was recorded by the Investigating Officer on the same day. The learned Sessions Judge has read out her statement recorded under Section 161, Cr. P. C. and noting made by him is that no contradiction could be pointed out on the point mentioned above. She was subjected to the cross-examination with regard to going to hutment of Gorey Lal. Her reply is that both the huts are close by. There was no water in her hut and therefore she had gone to the hut of Gorey Lal and sat there. We do not find any falsity in this part of her evidence. She had stated that Umrao and Juggey had not brought anything from the market. Her reply is that both the huts are close by. There was no water in her hut and therefore she had gone to the hut of Gorey Lal and sat there. We do not find any falsity in this part of her evidence. She had stated that Umrao and Juggey had not brought anything from the market. She had further stated that the two deceased had told her only about going to the market but what was the purpose behind their visit to the market was not disclosed to her. She could not offer any explanation for the omission in her statement under Section 161, Cr. P. C. to the effect that she had not stated therein that Phoolbai had informed her about this large assemblage and the accused persons intention to kill them i. e. , Umrao and Juggey. She denied the suggestion that this improvement she had made with the intention to rope in so many persons in the offence. No capital can be had from this omission because the Investigating Officer may not have questioned her about the same. It has also been urged that she has not specified injuries of ballams. It will be improbable to give out details of the acts and precise blows of different weapons for any witness where such a large number of assailants participate. She had admitted that ballam walas had assaulted only her Jeth Juggey Pradhan. She had admitted that Kirat had come three times from the side of Kanhais bera but Ratan Modley had threatened him to kill. Why these facts had not been recorded by the Investigating Officer in her statement she could not explain. She is an illiterate woman and disclosed only what was asked from her by Investigating Officer. The law does not require every minute detail to be recorded under Section 161, Cr. P. C. Only broad features of the case are to be enquired about and recorded therein. ( 33 ) HER statement was recorded on that very day before she could get medical aid for her injuries. Her husband and jeth were killed. Her son too was severally assaulted. In such circumstances how can it be expected of her to give out to the police officer such minor details on her own. Her statement under Section 161, Cr. P. C. contains broad features of the incident. Her husband and jeth were killed. Her son too was severally assaulted. In such circumstances how can it be expected of her to give out to the police officer such minor details on her own. Her statement under Section 161, Cr. P. C. contains broad features of the incident. Such minute details are subject-matter of evidence during trial alone. ( 34 ) SHE had further admitted in para 18 that Umrao had sustained few injuries at the neem tree. When he tried to run towards the village he was pulled down by six appellants at the bera of Gulzari and assaulted there. She was unable to tell that how many assailants assaulted him underneath the neem tree. Initially she had stated that all the 44 assailants except two gunwall as assaulted Umrao and Juggey underneath neem tree. She denied that the assailants werein two parties. All the assailants were assaulting the two. She had further admitted that Juggey had fell down at the same spot where the assault was initiated upon him. She had further stated that Umrao as a result of assault by six appellants fell down at the bera of Gulzari and the aforesaid six persons had killed him there. She had further stated that they had assaulted him while he was standing and also after he fell. Umrao was assaulted by six appellants with the end part of the lathi (huda) on his chest. She stated that neither she fell down nor blood fell down after her sustaining injuries from Kulhari on the head. It must have been soaked by her clothes. She had admitted that finally Kirat come to the spot after assailants had run away but Kirat had came to the spot thrice before as well. In the cross-examination it has been brought in her testimony that she had been in the hospital in the night but the doctor had told that he would examine her in the morning and so the medical examination was conducted during morning hours. Kirat had gone to lodge the report soon after. She had refuted the suggestion that before sun rise the two deceased persons were killed and she, Gorey Lal and Gajraj were also assaulted. Therefore very clearly the defence accepts the injuries of injured persons and the two deceased to have been received in the same transaction. Kirat had gone to lodge the report soon after. She had refuted the suggestion that before sun rise the two deceased persons were killed and she, Gorey Lal and Gajraj were also assaulted. Therefore very clearly the defence accepts the injuries of injured persons and the two deceased to have been received in the same transaction. The only dispute they are raising is that the assault took place in darkness and they could not identify the assailants. She had very categorically admitted that she had no idea of time but had stated that from the arrival of two buses which come to the village at 12-12. 30 she learnt that it was 12-12. 30. These replies have been elicited in the cross-examination. We did not find any plausible reason to discard her testimony with regard to time on the basis of her admission that she had no idea of time. The defence itself brought out very specifically the reason for her knowledge of the time. Thus the time of return of the two deceased to village from market is fully proved so also is the time of occurrence. ( 35 ) WE also do not find any substance in defence contention that she is a partly reliable witness. Nothing has been pointed out which may make us derive such a conclusion. She is an illiterate women. She has withstood her cross-examination bravely. Her testimony gives a clear impression that she is wholly reliable witness and we find it safe to rely upon her evidence. ( 36 ) PW 4 Gajraj is son of Umrao and nephew of Juggey deceased. He was also injured in the incident. He has very clearly stated that his uncle and father had gone to the market after taking their breakfast. They had come back at about 12-12. 30 p. m. during noon hours. After coming back from bus they were just sitting under a neem tree in the Khalihan. He, his mother and Kirat were sitting there. Gorey Lal, according to him, was in his Khalihan. When his mother told him that she is feeling thirsty, he along with his mother had gone to the hut of Gorey Lal. While they were quenching their thirst his sister Phoolbai came there and told them that in the baithak of Modely people have gathered with guns, lathis, ballams and axes. When his mother told him that she is feeling thirsty, he along with his mother had gone to the hut of Gorey Lal. While they were quenching their thirst his sister Phoolbai came there and told them that in the baithak of Modely people have gathered with guns, lathis, ballams and axes. Some of them were standing and some of them were sitting. She further told them that they were talking that Umrao and Jugga Pradhan have arrived and let us kill them. After learning this from the sister they came out of the hut. They saw people coming from three different sides. Ratan Modley was standing with gun on the road leading to the school. Ratan r/o of Ratanpur was standing with gun on the road that leads to Chittar. Ratan Modely exhorted other accused and said that as they are standing with guns on the road kill them and if any person comes to save them we will see. Barring Ratan Modley and Ratanpurwale Ratan, all the other assailants started assaulting Umrao and Juggey in the Khalihan with their respective weapons. When he, his mother and Gorey Lal ran to save them, they were also assaulted. Accused Uttam, Jawahar, Sukh Singh, Gulzari, and Ratan Garawale started assaulting him with lathies. When his mother came to save him. Bahadur assaulted her with axe and Uttam with lathi. When Umrao ran towards his village to save himself, he was chased by Meharban, Bhagirath, Dhan Singh, Surat Singh, Ganpat and Gopi. He was thrown in the compound of Gulzari and was assaulted by the abovesaid assailants with axes and lathies. At the time of assault Lakshman of village Bahadur, Khuman of Sorey, Rammu of Village Jalandhar, Nathu, Paney and Moolchandra of his own village arrived at the scene of occurrence. Lakshman said, "you have killed two persons will you finish the whole family?" Then all the assailants withdraw towards the village. While running away, Bahadaur gave a blow on the head of Juggey. He, his mother and Gorey Lal had also sustained injuries. ( 37 ) AS earlier discussed he is an injured witness. He had sustained as many as 18 injuries of blunt weapons on his person. These injuries by no stretch of imagination can be held to be self suffered or self inflicted. He has been assaulted with intense severity. Only providence saved him. ( 37 ) AS earlier discussed he is an injured witness. He had sustained as many as 18 injuries of blunt weapons on his person. These injuries by no stretch of imagination can be held to be self suffered or self inflicted. He has been assaulted with intense severity. Only providence saved him. His presence in the circumstances cannot be doubted. He has stated in para 5 that the incident had taken place at about 1. 30 p. m. during noon hours. The time of incident is finding corroboration from the First Information Report as well as Section 161, Cr. P. C. statement and medical evidence. Our attention has been drawn that the information given by the sister regarding the assemblage of the appellants at Ratan Modleys house and statement that let us kill the two is not there in his statement to Investigating Officer. No doubt this omission is there. Although he had failed to offer any explanation but in our opinion this omission is of no serious consequence. During the course of Section 161, Cr. P. C. statement, the Investigating Officer may not have questioned him about this detail. The Investigating Officer has not been asked whether he has enquired from these witnesses about this part or not. If his reply would have been in the affirmative the omission may have assumed significance. Both these witnesses were injured and must have been in deep agony. Death of his father and uncle must have unserved his mind and soul. Both omissions in the circumstances cannot be given any weightage in a case of this nature. A discrepancy has been pointed out about his previous statement and the present statement in Court inasmuch as in Court he had only said that he had been assaulted with lathi by Uttam, Sukh Singh and Ratan Garawala whereas in his statement to the Investigating Officer he has stated that when he fell down he was assaulted by Uttam with lathi. He has disputed the disclosure of assault by ballam in his statement to the Investigating Officer. He has very specifically stated that none of ballam walas were amongst his assailants. He had further specified that ballamwala had only assaulted Juggey deceased and none else. He could not tell whether ballam struck or not on the person of Jaggey deceased. We find that injury No. 6 and injury No. 8 are incised punctured wounds. He has very specifically stated that none of ballam walas were amongst his assailants. He had further specified that ballamwala had only assaulted Juggey deceased and none else. He could not tell whether ballam struck or not on the person of Jaggey deceased. We find that injury No. 6 and injury No. 8 are incised punctured wounds. Injury No. 7 cannot be ignored. It also appears the result of use of ballam. Thus, the presence of some ballam injuries is corroborated from the post-mortem examination of Juggey deceased. Apparently Umrao does not appear to have sustained any specific ballam injury. This version of the witness finds full corroboration from the medical evidence as well. He had stated in para 9 that the assailants all of a sudden had launched assault on the two deceased. According to him, 32 amongst the present assailants were holding lathi. They were also assaulting the victims. He had further stated that Kirat had come to the spot on three occasions but every time he was threatened by Ratan Modely as a result of which he had withdrawn himself from the scene of occurrence. He was confronted with his statement to the Investigating Officer to the extent that after departure of all the assailants, his uncle Kirat who had taken the cattle to the pond also returned. He had further stated in para 12 that Kirat had gone for lodging the report at about 3. 00 p. m. He has further clearly stated that from the place he went on foot and thereafter whether he used any vehicle or not he cannot say. The Investigating Officer arrived at the scene of occurrence sometime later after the arrival of Kirat. Both the dead bodies were sent for post mortem at 7. 00 p. m. in the evening. Only Kirat accompanied the dead bodies. The Investigating Officer had recorded his statement and that of his mother, Phoolbai and Gorey Lal on the same day. Prompt recording of the statement of Phoolbai by the Investigating Officer silences the argument about omission of her story in their statement to Investigating Officer. He has further stated that except Kirat the Investigating Officer had recorded the statement of all the witnesses on the same day. He further stated that all the witnesses were present when inquest memo and site plan were prepared. He has further stated that except Kirat the Investigating Officer had recorded the statement of all the witnesses on the same day. He further stated that all the witnesses were present when inquest memo and site plan were prepared. All the witnesses have disclosed to the Investigating Officer the places from where they had seen the incident. By the time dead bodies were sent statements under Section 161, Cr. P. C. of the witnesses were recorded. The dead bodies were sent on a bullock cart. His mother and Gorey Lal had gone by police car. They reached Madawra at 7. 30 p. m. They had reached Madawras hospital in the night. Their Medical examination was not conducted that night but was conducted on the next morning. A suggestion was given that they were taken to the hospital by the Chaukidar and no constable had accompanied him. This very suggestion suggests that definitely they were sent to the hospital for medical examination that very day and the injuries thus were not seriously under challenge. ( 38 ) THUS the argument that the report was transcribed with the consultation of the police and the incident had taken place in the darkness and the witnesses including he and his mother could not see the assailants and named them purely on account of enmity does not hold any water. There is no substance in this argument. The suggestion is bereft of any seriousness and is discarded. The presence of both the witnesses PW 1 and PW 3 under no circumstances can be disassociated or doubted. The circumstances and evidence discussed earlier unerringly establish beyond any doubt that this witness PW 4 who is a close relation of the two deceased was present at the time of incident and had sustained injuries in the same incident in which Umrao and Juggey Pradhan lost their lives. ( 39 ) NOW coming to the testimony of Kirat (PW 5) we find that he is the person who lodged the FIR. According to him he had gone to the police station and the report was taken down on his dictation. He had further given out the motive behind these murders. According to him his brother Juggey was the Pradhan of the village as a result of which Jain and Lodhis were nurturing malice against him. According to him he had gone to the police station and the report was taken down on his dictation. He had further given out the motive behind these murders. According to him his brother Juggey was the Pradhan of the village as a result of which Jain and Lodhis were nurturing malice against him. They had brought forth a no confidence motion against his brother Juggey which failed ultimately. He had further stated that in the murder of Girwar, Juggey, Umrao, Chudey Luhar were accused. A day before occurrence accused Sukh Singh, Babu, Jawahar, Uttam tried to outrage the modesty of his wife for which a report was lodged by him at the police station. He had disclosed that Meharban and Jairam are brothers. Similarly Ganiya and Sura are bother and cousin of Meharban and Jairam, Nathu is uncle of the above said four persons. Babu is son of accused Kanhai. Girdhar is nephew of Kanhai accused, Bhagirath, Sukh Singh and Panchu are brother. Vijai accused is son of accused Kallu. Darbari, Komal and Gulzari are brother of accused Kallu. Ashok is son of Darbari. Anand Kumar is cousin of Darbari. Thowan and Kishorey are brother, Jawahar is son of Chittar. Kashiram is cousin of Jawahar accused. Uttam is father of the Bhagwant. Malkhan and Dhan Singh are cousin, Ratna and Keshav are sons of Malkhan. Hammira and Man Singh are brother. Similarly Hathi and Ghasi are brother. He was subjected to cross-examination for the omission in the FIR of the fact that these Jain and Lodhis were nursing jealousy against Juggey on account of his being Pradhan of his village. His reply is that because of bad mental state it may not have been written. This fact is written in the statement under Section 161, Cr. P. C. But this enmity was on account of Juggey being Pradhan of village is not there. In our opinion, this omission is not relevant and no value can be attached to this omission. FIR is not an encyclopaedia. He has stated that his statement was recorded by the Investigating Officer on the same day. This witness instead of his wife told his Bahu to the Investigating Officer and instead of a day before as stated in Court told the Investigating Officer a day before yesterday. He could not explain the variation. FIR is not an encyclopaedia. He has stated that his statement was recorded by the Investigating Officer on the same day. This witness instead of his wife told his Bahu to the Investigating Officer and instead of a day before as stated in Court told the Investigating Officer a day before yesterday. He could not explain the variation. In our opinion such variations do not merit our consideration, as they are not immaterial for this case. He had very clearly stated that when he reached the spot for taking cattle to the pond he had seen that Umrao and Juggey were sitting underneath a neem tree. He had further seen that Gulab Rani and Gajraj were collecting chaff. He had very categorically stated that he dictated the FIR after having learnt about the incident from his sister-in-law and his nephew. He has stated in his cross-examination that he had seen Gorey Lal, Gulab Rani and Gajraj attempting to save the two deceased and after murder of the two deceased Gulab Rani and Gajraj had informed that they had come out from Gorey Lals hut. A contradiction has been pointed out in his testimony from the statement recorded under Section 161, Cr. P. C. His sister-in-law Gulab Rani and Gajraj were present in their Khaliyan and Gorey Lal was in his Khaliyan. He pleaded ignorance as to how this statement has been transcribed. This contradictory statement remained there but we are not impressed to go to the extent of discarding his presence at the spot on it alone. From a canciliation of the statements of PW 2. PW 4 and PW 5 it clearly emerges out that this witness must have arrived at the scene of occurrence before the assault commenced and came to an end and the assailants took to their heels. Thus even if he has not seen the entire incident, he must have identified the assailants before their leaving the spot and as per his own statement he was told by his sister-in-law and nephew about the incident before he lodged the First Information Report. To a question that apart from the named witnesses he had stated in the statement under Section 161, Cr. To a question that apart from the named witnesses he had stated in the statement under Section 161, Cr. P. C. gaon Ke Annya Log, the reply made by him is that he had stated to the Investigating Officer annya Gaon Ke Log because most of the witnesses belong to adjacent villages and not gaon Ke Annya Log. The Investigating Officer may have misunderstood him and therefore, may have transcribed Gaon Ke Annya Log. He has stated that his statement was recorded in the Khalihan and not at the police station. He has refuted that only Chaukidar had gone to lodge the report. It is incorrect to say that Moolchandra did not accompany him while he was going to lodge the report. A suggestion was given to him that there is a Post Office in his village and Darbari appellant is Postmaster. Darbari appellant is married to the sisters daughter of, Gulzari and Komal accused. He has evaded the reply to the suggestion that Darbari had lodged a report against Latkan and Paney. He has denied the suggestion that in the murder of Girwar Umrao and Juggey were accused and Kanhai was a witness but it is admitted to other witness. He has also refuted the suggestion that the incident had taken place during dark hour and he, Gajraj and Gulab Rani could not see or identify the assailants. Thus in our opinion the testimony of this witness too cannot be discarded as a whole. Undoubtedly PW 6 Dr. D. R. Prabhakar has admitted in his cross-examination that Juggey had punctured wounds which are not on the vital part and Umrao had absolutely no punctured wound. He has further admitted that Juggey has received three blunt weapon injuries whereas Umrao has also two. Thus according to him if these abrasions are excluded then participation of as many as 32 lathiwalas in the assault is doubtful. He has further stated that the stomach of both the deceased were empty and there was some faecal matter in their intestines. No benefit can be granted from the presence of faecal matter in the intestine of two deceased persons to the defence. The prosecution witnesses very categorically stated in their evidence that they had left for the market in the morning after only taking breakfast and had returned to the village at about 12. 30 during noon hours. No benefit can be granted from the presence of faecal matter in the intestine of two deceased persons to the defence. The prosecution witnesses very categorically stated in their evidence that they had left for the market in the morning after only taking breakfast and had returned to the village at about 12. 30 during noon hours. Till then they have taken anything or not is not questioned from the witnesses. We do not know the quantity that these two deceased had taken in the morning before they left for the market. In 3-4 hours it is to pass into the intestine. Otherwise also in a case of this nature where as many as three persons had sustained injuries and two of them are produced in evidence, we do not find any merit in this contention. This does not create any doubt in our mind about the time of occurrence. Lodging of FIR is corroborated from the testimony of PW 9 Constable Dhruv Prasad who was at that time clerk constable at the police station. He has admitted that Moolchand accompanied the information and he had stated the fact that all the assailants with common object had assaulted. When he saw the report, he admitted that this did not contain assault with common object. He further corroborated the statement of PW 5 Kirat by saying that he had informed about 44 accused persons. Since the name of Kishorey was repeated in this FIR therefore the report contained 45 names. This repetition of name in the FIR clearly indicates that it had been transcribed without any consultation. If consultation would have been there, this repetition was wholly impossible. According to this witness Investigating Officer Megh Singh who made initial investigation, was present at the police station when this FIR was transcribed but he has no knowledge whether any statement of witnesses was recorded at the police station or not. Then he further stated that he had not seen recording of any statement of the witness at the police station. The defence cannot get any benefit from this omission on the part of the Investigating Officer when two persons are done to death and as many as three persons are seriously injured no Investigating Officer will bother to waste his time in recording the statement of the informant. He instead will be in a hurry to visit the spot. The defence cannot get any benefit from this omission on the part of the Investigating Officer when two persons are done to death and as many as three persons are seriously injured no Investigating Officer will bother to waste his time in recording the statement of the informant. He instead will be in a hurry to visit the spot. The distance of village is four miles from the police station. The Investigating Officer had left police station immediately for the spot and three injured persons reached the police station at 9. 30 p. m. in the night. They had come with Chaukidar Ajit Kumar. No police personnel had come with them except police driver. They were sent to the hospital with Chaukidar. No constable was sent because during those days there was dearth of force at the police station. He further stated that in the FIR the lack of force is transcribed. These circumstances, in our opinion, fully corroborate prompt lodging of F. I. R. ( 40 ) IN the circumstances of the present case it is proved that these injured persons reached the police station at 9. 30 p. m. during night. This fact has not only been asserted by three witnesses but fortified from the statement of this witness as well. We do not find any valid reason not to accept this. He had further corroborated the version that they were not medically examined that night because doctor was not there. They were medically examined next day. He has refuted the other suggestion with regard to lodging of the report etc. and proved that axe had been recovered from the possession of the Babu appellant and ballam was recovered from the house of Darbari. Kulhari (axe) was bloodstained. ( 41 ) PW 10 is the witness of recovery of weapons. He is brother of witness Paney named in the FIR and son of Kanhai. It appears that he is related with the informant. This witness further stated that all the three accused persons lived separately. Darbari was staying in the village or not is evaded by him. He has admitted that the letters that came to the village from outside were distributed by Darbari. Thus this fact is borne out that Darbari was connected with the Post Office. The defence suggestion in this regard was refuted. Darbari was staying in the village or not is evaded by him. He has admitted that the letters that came to the village from outside were distributed by Darbari. Thus this fact is borne out that Darbari was connected with the Post Office. The defence suggestion in this regard was refuted. There are a number of houses adjacent to the house of the two appellant from whom the recovery of ballam and axe is alleged by the prosecution. None of them were made witnesses of these recoveries. In the circumstances we are not prepared to accept these recoveries. Regarding recovery of ballam and bloodstained axe, we are not inclined to accept the prosecution evidence. PW 11 Randhir has stated that he had gone with the driver and conductor of the bus by which the deceased Juggey and Umrao had returned to the village. Since they were not prepared to depose, their statements are not recorded. This fact is not transcribed in the case diary by him. Merely as recorded in case diary, he has made an enquiry from the villagers with regard to going to the market of the two deceased. Since nobody was ready to state anything, he did not transcribe this fact or their names too in the case diary. He has admitted that he has not transcribed the statement of people whose fields were adjacent to the field of occurrence. He had further stated that nobody was available. After the occurrence villagers were not available. No seriousness can be attached to this omission or lacuna committed by the Investigating Officer as this is not going to adversely affect the prosecution story and the veracity of the eye-witnesses. Close relations are not likely to allow the real assailants to go scot free. Villagers normally avoid to become a witness in such cases especially when the village is deeply divided in factions. We do not see any serious infirmity in the testimony of the Investigating Officer. The statement of the other Investigating Officer PW 12 does not help the defence. Latches of the investigation cannot be allowed to thwart otherwise reliable prosecution evidence. ( 42 ) THUS so far as the contention of learned counsel for the State is concerned, we find substance in his argument that the witnesses are wholly reliable, PWs 1, 2 and 3 are reliable witnesses and we accept their testimonies. Latches of the investigation cannot be allowed to thwart otherwise reliable prosecution evidence. ( 42 ) THUS so far as the contention of learned counsel for the State is concerned, we find substance in his argument that the witnesses are wholly reliable, PWs 1, 2 and 3 are reliable witnesses and we accept their testimonies. ( 43 ) SO far as PW 5 is concerned. , his testimony is only given to establish motive and also the fact that he has transcribed the FIR on the basis of what had been told by his Nephew and sister-in-law. Regarding his having seen the occurrence, it does not appear to us that he came to the spot from the pond and had gone away thrice due to fear on account of threats extended by Ratan Modley. No doubt this witness has very clearly stated that the alleged incident was witnessed by him. His evidence with regard to the incident can be ignored. He must have seen the assailants at the fag end. We have no doubt about this fact. He has proved the time of occurrence, motive and also presence of both the deceased and injured at the spot. ( 44 ) IN our opinion having arrived at the conclusion that the incident had occurred as alleged by the prosecution and in the manner stated by the witnesses, we still have to examine the probability of participation of 44 persons in the incident, out of whom two persons were armed with gun. Not a single firearm injury is there. The evidence against them is that they had been standing there with guns in their hands as watch wards. According to the prosecution case they were standing to prevent any person coming to the spot yet so many persons came to the spot and spoke to the assailants. There are three ballam walas. According to the Medical opinion only two injuries on the person of Juggey can be attributed to ballam walas. Six persons were armed with axes. Learned counsel for the defence wants us to examine and assess the probability of participation of 32 persons with lathis, 6 persons with axes and 3 persons with ballam in the incident. ( 45 ) PARTICIPATION of two gunwalas appear to us highly doubtful. They had not in any manner participated in the incident. Six persons were armed with axes. Learned counsel for the defence wants us to examine and assess the probability of participation of 32 persons with lathis, 6 persons with axes and 3 persons with ballam in the incident. ( 45 ) PARTICIPATION of two gunwalas appear to us highly doubtful. They had not in any manner participated in the incident. Still we find that as many as 6-7 persons had seen the occurrence apart from PW 4 Gajraj, PW 2 Gulab Rani and Gorey Lal. This further goes to suggest that they may not have been present and even if their presence is accepted none participated in the incident. This further does not rule out the probability that they may have disassociated themselves at the nick of time and remained aloof. If they were sharing the common object of murder of the assembly what prevented them from using their guns is not understandable. Thus these two persons are entitled to benefit of doubt. These persons Ratan son of Kaddey and Ratan son of Khet Singh who were armed with guns are, therefore, given the benefit of doubt. ( 46 ) THE specific roles have been attributed in the assault of Umrao to six appellants. PW 1 was unable to give out names of assailants of Umrao before he tried to run. No doubt she has stated very clearly that only 6 appellants killed her husband after throwing him on the ground. The names of six persons are available to us from the testimony of PW 2 Gajraj as assailants i. e. Meharban, Bhagirath, Gopi, Dhan Singh, Ganiya and Sura. He has given out the names of those who assaulted his mother as Bahadur and Uttam. He also disclosed the names of his assailants as Uttam, Jawahar, Sukh Singh, Gulzari, Ratan Garwale. So far as deceased Gajraj is concerned, it is alleged he was assaulted by all the appellants. But examination of his injuries show that he had sustained only eight injuries. Out of which five are incised wounds. Injury No. 2 is a contusion and third is large echymosis in an area 9" x 6" the midline on the chest back on both side, at its lower half. Injury No. 5 may be a result of sustained lathi blows which the deceased, may have been subjected to after his fall. The other contusion was on the head. Injury No. 2 is a contusion and third is large echymosis in an area 9" x 6" the midline on the chest back on both side, at its lower half. Injury No. 5 may be a result of sustained lathi blows which the deceased, may have been subjected to after his fall. The other contusion was on the head. There was only one fracture. Thus, so far as Juggey is concerned, in his case the participation of some with lathi can be worked out. Participation of ballamwalas can specifically be deciphered against two only. Injury No. 7 on his person can also be attributed ballam. It is common knowledge that when the victims are being assaulted by a mob then generally those who are in the fore from participate largely in the assault but it does not mean that others had not share their common object. From the nature and manner of the assault, it appears to us that the assault was launched by a large number of persons upon two deceased as well as three injured persons and the common object must have been to kill. ( 47 ) SO far as Darbari appellant is concerned, he has produced DW 1 Bhagwan Swaroop, sorting postman. His evidence shows that this appellant was arrested on 4-5-1976 by the police at 2. 45 p. m. from the post office. This witness Bhagwan Swaroop has very clearly stated that on the date of occurrence he had gone to headquarter. He had prepared the report about the arrest of the Darbari appellant in two copies and had sent that by registered post to S. P. O. Lalitpur. He has filed carbon copy of his report. He has stated that if a registry is made to the department no postage stamp is necessary to be affixed. He has admitted that he has not made any complaint at any police station or with any superior police officer. On 5-5-1976 he had sent a registered letter to the police that they had arrested appellant Darbari without any information which has resulted into complete closure of the post office. He has further admitted that in the letter sent to the S. H. O. Madawra he had not stated about the removal of cash and postage stamp of his office by the police. He has further stated that the department had not conducted any enquiry on the report. He has further admitted that in the letter sent to the S. H. O. Madawra he had not stated about the removal of cash and postage stamp of his office by the police. He has further stated that the department had not conducted any enquiry on the report. The prosecution had compelled him to file the copy of the application sent by him to police station, and also that of the receipt of the reply. They are marked as Ext. Ka 25 and 26. He has refuted the suggestion made by the prosecution that being a member of the department he had made this ante dated. He has further denied that the appellant had not arrived there on 4-5-1976. He had refuted that Darbari was arrested with blood stained ballam. ( 48 ) WE have carefully examined the statement of this witness and we find some substance in the case of the appellant that he was arrested from the post office on the date of occurrence itself. This fact itself goes a long way to discard the participation of this appellant. No accused who had participated in such a heinous offence of murder will be in such a frame of mind to be present with blood stained ballam for nearly two hours in the village post office. In the circumstances this appellant is also entitled to the benefit of doubt. ( 49 ) THE evidence of enmity in this case specifically has come against the family of Girwar. In his murder both the deceased and Paney were accused. Girwar is son of Than Singh, Pancham and Nathhu are his brothers. Meharban and Ram Diya are his sons. Ganiya and Soora are sons of Pancham. Nathu is first cousin of Girwar and Pancham being son of their uncle. We dont entertain any doubt in the participation of five members of this family. Nathhu Ganiya, Soora, Meharban and Daya Ram. The other enmity available to us is against Uttam, Sukh Singh, Babu and Jawahar. We do not find any difficulty in accepting their participation. Three of them have been attributed main role as well. Apart from them eight others also have been attributed specific roles. They are Gulzari Ratnam Garwala, Babu, Bahadur, Bhagirah, Than Singh, Soora, Dhan Prasad and Gopi. We do not find any difficulty in their participation in the incident. We do not find any difficulty in accepting their participation. Three of them have been attributed main role as well. Apart from them eight others also have been attributed specific roles. They are Gulzari Ratnam Garwala, Babu, Bahadur, Bhagirah, Than Singh, Soora, Dhan Prasad and Gopi. We do not find any difficulty in their participation in the incident. As a matter of fact participation of all the seven having axes, two possessing ballams and as many as 12 lathi walas is concerned we find safe to decipher. Rest of the appellants are entitled to benefit of doubt, especially when we find participation of as many as 32 persons having lathies most unsafe to believe. The persons holding axes are Meharban Babu, Bahadur, Nathhu, Girdhari Bhagirath and Gopi. Two ballams were held by Dayaram and Vijai. Participation of Ganiya, Soora and Dayaram being of the family of Girwar cannot be doubted. Similarly participation of Sukh Singh, Uttam, Gulzari, Dhan Sing, Dhan Prasad, Ratam s/o Malkhan, Jawahar, Malkhan, Komal, Ashok, also cannot be doubted. These last 12 are lathi holders. ( 50 ) OUT of these appellants whom we find guilty of the offence of murder five have died during the pendency of appeal. They are Sukh Singh, Ganiya, Babu, Malkhan and his son Ratan. Their appeals have already abated. . .