Judgment R. N. PRASAD, J. 1. Both the appeals have been filed against common judgment and as such they have been heard together and are being disposed of by this judgment. 2. The appellants have preferred these appeals against the judgment and order dated 16-7-1992 passed by 5th Addl. Sessions Judge, Patna in S.T. No. 278/23 of 1985/88 whereby appellants have been convicted for the offence under Sec. 302/34 of the Indian Penal Code and have been sentenced to undergo imprisonment for life. 3. The prosecution case is that one Dhanu Choudhury gave his fardbeyan at the police station on 28-6-1982 at about 2.45 a.m. that his son Mahesh Lal Choudhary had gone to attend the marriage ceremony in the house of Risi Babu and he was in his house. At about 2.15 a.m. he heard cry of his son. He came out of his house and saw that his son was lying on the ground and Laxmi Pati Sahay and his son Dipu were catching hold of him. The eldest son of Laxmi Pati Sahay, namely, Rajesh Sahay was assaulting his son with dagger. Laxmi Pati Sahay was saying to kill him. He also raised claim on which Surendra Kumar Gupta, Chaitu Yadav and others came and saw the occurrence. After assault the accused persons ran away. He saw that blood was oozing out from the injury near the Hydrocele. The motive of the occurrence was that there was a proceeding under Sec. 144 of the Code of Criminal Procedure with the accused persons and due to the aforesaid reason the accused persons had assaulted his son. 4. On the aforesaid fard beyan a formal First Information Report for the offence under Sec. 307 of the Indian Penal Code was registered and investigation was taken up. The injured was sent to the Hospital where he died on the same day and as such it was converted into under Sec. 302 of the Indian Penal Code. On completion of investigation, charge sheet was submitted, cognizance was taken and the case was committed to the Court of Session for trial. The trial Court convicted the appellants for the offence under Sec. 302/34 of the Indian Penal Code as stated above. 5. The defence of the appellants was that they were innocent and they had been falsely implicated in the case out of enmity. The genesis of occurrence is not true. 6. The trial Court convicted the appellants for the offence under Sec. 302/34 of the Indian Penal Code as stated above. 5. The defence of the appellants was that they were innocent and they had been falsely implicated in the case out of enmity. The genesis of occurrence is not true. 6. The prosecution in support of its case examined six witnesses out of whom P.Ws. 1, 2 and 3 are eye-witnesses to the occurrence. P.W. 4 is the informant and also an eye-witness to the occurrence. P.W. 5 is Doctor who held postmortem over the dead body. P.W. 6 is the Investigating Officer. The defence also examined one witness i.e. Sheo Narain Singh who proved para 5 of the case diary. 7. P.Ws. 1, 2 and 3 are eye-witnesses to the occurrence and are also independent witnesses. P.W. 4 is the informant and father of the deceased and has claimed to have seen the occurrence. The occurrence isalleged to have taken place in the night of 28-6-1982 at 2.15 a.m. Fard beyan was recorded on the same night at about 2.45 a.m. i.e. after half an hour of the occurrence and as such false implication and concoction of the case is ruled out. P.W. 4 the informant has stated in his evidence that his son Mahesh had gone to attend the marriage ceremony in the house of Risi Babu. He was in the house and waiting for his son. At about 2.15 A.M., he heard cry of his son. He came out from the house and saw the appellants Laxmi and Dipu catching hold of his son who was lying on the ground. Appellant Laxmi ordered to kill on which his son appellant Rajesh gave dagger blow near the hydrocele. P.Ws. 1, 2 and 3 came on hearing alarm, then the appellants ran away. Blood was coming out from the injury. The motive of the occurrence was dispute for house and litigation. The injured was taken to the Police station where his fard beyan was recorded. His son died in the hospital. The witness was cross examined at length but nothing cogent was elicited to discard his evidence. The witness stated that he disclosed the name of the assailants at the place of occurrence. The witness also stated that people came at the place of occurrence after the occurrence. 8. P.W. 1 is an independent witness. His son died in the hospital. The witness was cross examined at length but nothing cogent was elicited to discard his evidence. The witness stated that he disclosed the name of the assailants at the place of occurrence. The witness also stated that people came at the place of occurrence after the occurrence. 8. P.W. 1 is an independent witness. He stated in his evidence that his shop is at a distance of 50 steps from the place of occurrence. He was in his shop. On hearing alarm he came near the house of the deceased namely, Mahesh and saw that the deceased was lying on the ground and appellants Laxmi and Dipu were catching hold of him. Laxmi ordered to kill on which Rajesh came running with dagger and gave dagger blow to the deceased near the hydrocele. Blood was coming out from the injury. People came and the injured was taken to the police station on the cot. The dispute between the prosecution party and the appellants was for house. The injured died on the way of the hospital. The witness was cross examined at length but it appears that he stood the test of cross examination except minor contradictions. His attention was also drawn to the statement made before the police and the Magistrate with respect to the minor omission and commission such as he did not tell before the police and the Magistrate that he was in his shop and also that appellants were catching hold of the leg etc. 9. P. W. 2 is also an independent witness. She was living at the relevant time near the place of occurrence. She stated that at the relevant time she had arisen as it was time of Roza. Fakir used to come to awake. On hearing alarm she went to the roof of her house and saw from the corner of the roof that appellants Laxmi, Dipu and Rajesh were scuffling with the deceased. The deceased fell down. Appellants Laxmi and Dipu were catching hold of him and on the order of appellant Laxmi appellant, Rajesh gave dagger blow to the deceased. She came down from the roof. The informant was raising alarm. Thereafter she went near the deceased and found him unconscious. Blood was coming out from the injury near the hydrocele. People took the injured to the police station. She came down from the roof. The informant was raising alarm. Thereafter she went near the deceased and found him unconscious. Blood was coming out from the injury near the hydrocele. People took the injured to the police station. She has no enmity with appellant Laxmi Pati. She was cross examined at length but it appears that she stood the test of cross examination. She stated that scuffling took place for about 20-25 minutes but she subsequently stated that she had no idea of time. Stonechip material for construction of road was also at the place of occurrence. She stated that she was living there since her childhood and even after her marriage. Her attention was drawn to the statement made before the police and the statement made under Sec. 164 of the Code of Criminal Procedure on flimsy matters. 10. P. W. 3 is also an independent witness. His house is situated near the place of occurrence. At the relevant time he was on the first floor of his house. He heard alarm raised by the informant and saw from the first floor that three persons were assaulting but he could not identify them. He came down from the roof and also came out from the house and identified the appellants who were running away. He informed the Homeopathic Doctor Ram Prasad and he came at the place of occurrence with the Doctor and found the deceased unconscious. The witness also stated that there was dispute for house between the appellants and the informant. P. Ws. 1 and 2 had also come at the place of occurrence. In cross examination the witness stated that blood had fallen at the three places at a distance of 20 yards each. At the place of occurrence the road runs east to west and also gave vivid picture of the place of occurrence. The night was dark. When he came near the place ofoccurrence he saw P.Ws. 1 and 2 there. Thus it appears that witness has stood the test of cross-examination. 11. P. W. 5 is Doctor who held post mortem over the dead body on 28-6-1982 at 2 p.m. He found punctured wound near the hydrocele. The Doctor opined that death was due to shock and haemorrhage due to the injury found on his person. The injury was caused by sharp pointed weapon such as dagger. 11. P. W. 5 is Doctor who held post mortem over the dead body on 28-6-1982 at 2 p.m. He found punctured wound near the hydrocele. The Doctor opined that death was due to shock and haemorrhage due to the injury found on his person. The injury was caused by sharp pointed weapon such as dagger. Time elapsed since death was within 12 hours. This fits in with the time of occurrence and supports the prosecution case with regard to weapon used in the occurrence. 12. P. W.6 is the Investigating Officer. He stated that he recorded the fard beyan of P.W. 4 at 2.45 a.m. and drew up a formal First Information Report under Sec. 307 of the Indian Penal Code. He prepared injury report and sent the injured to the hospital but in the hospital he was declared dead and as such Sec. 302 of the Indian Penal Code was added. He recorded further statement of the informant and also recorded statement of the witnesses. He inspected the place of occurrence and found blood at three places. He seized blood stained stones and blood found on the ground and prepared seizure List. After information about death he went to the hospital and prepared inquest report. In cross examination the witness stated that he found blood at three places but he could not record the distance. The witness also gave detailed description of the place of occurrence and the houses of the witnesses, wherefrom it appears that house of the witnesses are near the place of occurrence. The witnesses stated that P. W. 2 did not say before him that appellant Laxmi was catching hold of the deceased and appellant Dipu was catching hold of his leg. She also did not say before him that she was awaking at it was time of Roza. She also did not say before him that after the assault she came down from the roof. P. W.1 had stated before him that he was at his Dera (House). He did not say that he was in the shop. P. W. 3 has stated before him that he identified the appellants while running away. The witness did not say before him that P. Ws. 1 and 2 had also come at the place of occurrence. 13. P. W.1 had stated before him that he was at his Dera (House). He did not say that he was in the shop. P. W. 3 has stated before him that he identified the appellants while running away. The witness did not say before him that P. Ws. 1 and 2 had also come at the place of occurrence. 13. From the discussion of the evidence of witnesses it is evident that oral evidence of eye-witnesses is consistant to each other on the point of occurrence and manner of assault. The witnesses have categorically stated that the deceased was lying on the ground and appellant Laxmi Pati and Dipu were catching hold of them and on the order of appellant Laxmi Pati, appellant Rajesh gave dagger blow to the deceased. The witnesses also stated about the motive of occurrence, dispute with regard to house and litigation. The Doctor, P. W. 5 who held postmortem over the dead body found injury caused by sharp pointed weapon and opined that death was due to the injury found on the person of the deceased. Therefore, his evidence also supports the prosecution case. P. W.6 the Investigating Officer also found blood at the place of occurrence and seized the blood and prepared seizure list. He has given detailed description of the place of occurrence wherefrom it appears that witnesses were residing near the place of occurrence. He recorded the fard beyan after about half an hour of the occurrence. Thus the evidence of P. W. 6 also corroborate the prosecution case. 14. Learned counsel for the appellants pointed out minor contradictions such as on the point of catching hold of the deceased with respect to P.Ws. 2 and 3 and also living of P. W. 1 in the house or shop. Learned counsel also pointed out that there is difference with regard to words uttered by Laxmi Pati and the alarm raised by the prosecution party and according to him in view of discrepancies as indicated above the evidence of the prosecution witnesses should not be relied upon. In this regard it would be relevant to point out the witnesss deposed in the court after six years. The discrepancies in evidence, as has been pointed out, are flimsy in nature. Such discrepancies are bound to occur because of the fact that the witnesses were examined after six years of the occurrence. In this regard it would be relevant to point out the witnesss deposed in the court after six years. The discrepancies in evidence, as has been pointed out, are flimsy in nature. Such discrepancies are bound to occur because of the fact that the witnesses were examined after six years of the occurrence. Morever, the evidence of eye-witnesses is consistent on the point of occurrence and manner of assault. In such a situation such minor discrepancies cannot be held to be fatal to the prosecution. 15. Learned counsel for the appellants further pointed out that P.W.4 stated in his evidence that witnesses came after the occurrence and as such P.Ws. 1, 2 and 3 cannot be eye witnesses to the occurrence. In this regard it would be apt to mention herein that P.W.1 stated in his evidence that he came near the house of the deceased and saw the occurrence of assault by the appellants andthereafter he went near the place of occurrence. P.W.2 stated that she saw the occurrence from the corner of the roof of the house and thereafter she came at the place of occurrence. P.W. 3 similarly stated that he first saw the occurrence from the first floor of his house and then came down and saw the occurrence from the door of his house and then he went to the place of occurrence. Therefore, it is manifest from the evidence of witnesses that they saw the occurrence from different places and then they went to the place of occurrence and as such evidence of P.W.4 that the eye witnesses came after the occurrence and as such there was no occasion to see the occurrence cannot be considered in isolation. Moreover, eye witnesses are independent witnesses and there was no occasion to falsely implicate the appellants and as such the contention of learned counsel for the appellants has no substance. 16. Learned counsel for the appellants next pointed out that P.W.3 stated in his evidence that night of occurrence was dark and there was no means of identification and as such evidence of eye witnesses on the point of identification cannot be relied upon. In this regard it would not be out of place to mention herein that witnesses are inhabitants of the same locality and their houses are near about the place of occurrence. The appellants and the deceased both were known to them. In this regard it would not be out of place to mention herein that witnesses are inhabitants of the same locality and their houses are near about the place of occurrence. The appellants and the deceased both were known to them. It has been stated by the witnesses that they had seen the occurrence from close range and as such in my view identification of known men from the close range in the dark night is possible. Moreover, their evidence on the point of occurrence and assault is consistant to each other. In such a situation the prosecution case cannot be thrown out on this ground alone. 17. Learned counsel for the appellants next pointed out that one of the witnesses has stated that he had seen blood at three places at a distance of 20 yards each but the evidence of witnesses is that the deceased was assaulted at one place which falsifies the prosecution case. The Investigating Officer, P.W. 6 stated in his evidence that he also found blood at three places but he could not get the distance between three places measured. The distance as has been stated by the witnesses is not very material as blood might have fallen while taking away the deceased from the place of occurrence. Moreover, the Investigating Officer has also stated that he found blood at three places. Thus the inconsistancy pointed out by the learned counsel for the appellants has no leg to stand and the prosecution case cannot be thrown out on the said ground. 18. Thus on consideration of the entire facts and circumstances of the case, as discussed above, I find no merit in these two appeals. Accordingly, both the appeals are dismissed. 19. Appellants Lakshmipati Sahai and Dilip Kumar Sahay alias Dilip Sahay alias Dipu are on bail. Their bail bonds are cancelled. They are directed to surrender to serve the sentences.Appeals dismissed.