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Rajasthan High Court · body

2001 DIGILAW 947 (RAJ)

Budhi and Roop Singh v. State of Rajasthan

2001-05-24

ARUN MADAN, K.S.RATHORE

body2001
Honble MADAN, J.–This criminal appeal has been filed by the appellants challenging judgment dt. 14.10.99 of the learned trial court, whereby each of the appellants has been convicted for offence u/S. 302, IPC and sentenced to life imprisonment with a fine of Rs. 500/- (in default, further RI for 3 years). (2). It is the prosecution case that an FIR No. 347/98 was registered at PS Kotwali (Sawai Madhopur) upon information given by Babulal Gurjar on 30.8.98 to the effect that the village people had gone to the holy shrine of `Kachida Mataji temple situated in the Hill to worship and after obeisance some of them returned back but he (Babulal) alongwith Ramu & Harphool proceeded to return at 4 O clock in the evening, then reached near Nalla ahead anicut at about 5 PM during which he has ahead, Harphool was in between, and as soon as they crossed and were inclining over nalla then they saw Budhi & Roop Singh alias Roopa Gurjar of village Bhadlav duly armed with lathies and soon they (Budhi & Roopa) reached near them and soon thereafter started inflicting blows on the person of Harphool. It has been alleged in the report that Budhi caused injuries by lathi on the head of Harphool thereby he fell on the ground with blood oozing out from the head but despite Harphool having fallen down Roopsingh & Budhi continued causing injuries to him (Harphool) by infliction of lathies blows, and even when he tried to escape, the accused did not rebut. However, Harphool succumbed to the injuries then and there at the spot itself. It has been stated therein that since Harphool died at the spot, they got afraid, so first they went to inform wife & son of Harphool in the village and thereupon came back to the spot wherefrom some people left for informing the police on telephone. Written report was given to SHO PS Sawai Madhopur who reached the spot on 30.8.98 at 9 PM and then it was sent to the police station through Hanuman Prasad Constable No. 493. Consequently, FIR under Crime No. 347/98 was registered for offences u/Ss. 302 & 341/34 IPC. (3). Site plan (Ex.P.2) was prepared on 31.8.98. Blood smeared soil and controlled soil were taken from the spot vide seizure memo (Ex.P.4) and then sealed at the spot on 30.8.98. Consequently, FIR under Crime No. 347/98 was registered for offences u/Ss. 302 & 341/34 IPC. (3). Site plan (Ex.P.2) was prepared on 31.8.98. Blood smeared soil and controlled soil were taken from the spot vide seizure memo (Ex.P.4) and then sealed at the spot on 30.8.98. Deadbody of Harphool was taken into custody at the spot by preparing memo (Ex.P.5) on 30.8.98 at 9.45 P.M. so as to get inquest and autopsy reports. After inquest report (Ex.P.6) the dead body was handed over to the son of Harphool but after post mortem. During the process of inquest report, clothes from the body of deceased Harphool were seized vide seizure memo (Ex.P.7) on 31.8.98 at 9.30 A.M. and the Medical Jurist gave post mortem report (Ex.P.9) after getting examination of body at mortuary of Govt. Hospital Sawai Madhopur on 31.8.98 at 8.30 A.M. As per post mortem-report (Ex.P.9) nine injuries were found on the body of deceased Harphool, which were opined to be ante-mortem in nature, out of which, injuries Nos. 6 to 8 were bruises on anterior aspect of left elbow, on back of left arm, and on upper part of back of left arm. Injury No.9 was swelling and found on back of right hand but on dissection, fracture of proxyneal phalanix of index and middle finger of right hand was found. Rest of five injuries were lacerated wound. Injury Nos. 1 to 5 were found on right side of forehead (transversely placed), occipital region of scalp 1 above injury No.2 on post armoular region of mastoid of scalp left side, right parietal region of scalp (obliquely transversely placed). All these five injuries were bone deep. On dissection of scalp, the doctor who conducted post mortem examination of the deceased opined as under:- ``Haematoma present on occipital and right frontal region of scalp and after cleaning there were multiple fracture pieces of occipital bone is seen and depressed and integrated into brain matter. After opening the skull tear of dura membranes at occipital region and haematomma collected above and below dura membrane on occipital region and laceration of brain matter on occipitallobe of hemisphere. However, injury Nos. 2 & 3 are to be treated as dangerous to life in ordinary course of life but blunt. (4). After opening the skull tear of dura membranes at occipital region and haematomma collected above and below dura membrane on occipital region and laceration of brain matter on occipitallobe of hemisphere. However, injury Nos. 2 & 3 are to be treated as dangerous to life in ordinary course of life but blunt. (4). According to the doctor, as opined in the autopsy report all the injuries were caused by blunt weapon, and the cause of death of Harphool (deceased) was due to coma resulting from injury Nos. 2 & 3 which were found on occipital region of scalp. (5). During investigation, the accused (Budhi) was arrested on 6.9.98 by arrest memo (Ex.P.8). Accused Budhi got recovered from his possession a lathi on 8.9.98 which was seized vide seizure memo (Ex.P.11) on his information given under Section 27 of the Evidence Act vide memo (Ex.P.18). Similarly accused Roopa was arrested on 6.9.98 by memo (Ex.P.3) and on his information given under Sec. 27 of the Evidence Act by memo (Ex.P.16), he got recovered a lathi which was seized at his instance vide memo (Ex.P.13). (6). After usual investigation, the police filed its report and charge sheet against the accused appellants for offences under Sections 302, 341 read with Sec. 34 IPC, in the Court of CJM Sawai Madhopur which committed the case for trial to the Court of Sessions. However, the appellants were charged for offence u/S. 302 IPC to which they pleaded not guilty and claimed trial. The prosecution examined as many as fifteen witnesses in support of the charge. The appellants were examined u/S. 313 Cr.P.C. but did not examine any witness in defence. After hearing the parties, the learned trial Court by its impugned judgment convicted and sentenced each of the appellants as indicated above. Hence, this appeal. (7). I have heard the learned counsel for the parties and perused the evidence on record. (8). First contention canvassed by Shri Suresh Sahni, learned counsel appearing on behalf of the accused appellants is that the prosecution has not placed its case as per genesis in its true perspective since according to him as per law, information which was transmitted first in time to the police telephonically should have been treated as FIR as has not been done in the present case. His further contention in this regard is that the original FIR was the one which was the message conveyed to the police by the informant telephonically and not the FIR (Ex.P1) which infact is the report given by informant at the spot. Second limb of his argument is that FIR (ExP1) is not the original one because Ramu (PW2) in his cross-examination unambiguously stated that the report given to the police was also thumb marked by him and the report lodged with the police which he stated in his examination in chief, is correct and also thumb marked by Babulal (PW1). It is the case on behalf of the appellants as contended by Shri Sahni that a bare perusal of the FIR (Ex.P.1) would reveal completely and incontrovertibly that it (Ex.P.1) did not carry any thumb impression of Babulal (PW 1). On the basis of these assertions, Shri Sahni vociferously contended that origin of the FIR being shrounded in dubious circumstances, its credibility does not inspire any confidence and it looses its sanctity this making the prosecution case improbable. To canvass his case, the learned counsel placed reliance upon the decision in this context in the matter of Thulia Kali vs. State of Tamilnadu (1), & Sunil Kumar vs. State of MP (2). In Thulia Kali vs. State of Tamilnadu (supra) the knife alleged to have been used in stabbing the victim was found by the chemical examiner to be not stained with blood and it was not clear why the accused should have kept it on his bed where he had ample opportunity to throw away the knife in some lonely place. Further there was delay of more than 20 hours in lodging the FIR though the police station was only at a distance of two miles. Hence the Apex Court observed that the circumstance would raise considerable doubt regarding the veracity of the case and it is not safe to base conviction upon it. (9). Further there was delay of more than 20 hours in lodging the FIR though the police station was only at a distance of two miles. Hence the Apex Court observed that the circumstance would raise considerable doubt regarding the veracity of the case and it is not safe to base conviction upon it. (9). It is true, as expounded by the Apex Court that:- (1) FIR in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroboration the oral evidence adduced at the trial and its significance can hardly be over estimated from the standpoint of the accused, (2) that the delay in lodging the FIR often results in embellishment which is a creature of after-thought and on account of delay in lodging of the report the accused not only gets benefit of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation, and (3) so it is essential that the delay in the lodging of the first information report should be satisfactorily explained, which is not the position in the instant case. Hence, it is distinguishable and not applicable to the present as it is not the controversy relied by the defence. (10). In Sunil Kumar vs. State of MP (supra) while considering as to what is FIR, the Apex Court held that telephonic information to police station about cognizable offence recorded in daily diary book though such information did not mention names of assailants but investigation started on its basis, would be treated as FIR. (11). It was a case where the accused persons duly armed with lathies and axes were alleged to have committed rioting and killed the deceased and attempted to kill another in the presence of only two victims and nobody else was present at the time of incident. Hence the Apex Court held that presumption under Section 114 of Evidence Act cannot be drawn for non-examination of material witnesses, inasmuch as statement of injured witness recorded by Magistrate disclosing substratum of prosecution case but no material showing said statement was tutored, therefore, in view of testimony of injured witness corroborated by other prosecution witnesses so also with medical evidence, the conviction of accused was held proper. This decision also does not render any assistance to Shri Sahni in advancing the case on behalf of the accused-appellant. (12). Upon careful perusal of written report (Ex.P.1) we find that it bears thumb impression of Babulal (PW 1) and as per the endorsement made by SHO PS Sawai Madhopur thereon, report was given to him (SHO) at the shot when he reached there at about 9 PM on 30.8.98 and upon receipt thereof, it was sent to the police station through Hanuman Prasad Constable No. 493 in a Govt. Jeep so as to register crime and FIR. As per note endorsed thereon which has been marked as E to F, after registration of the crime and FIR, written report (ExP1) was sent back by the I/O to concerned police station whereupon the Investigating Officer was deputed to proceed on with the investigation. In examination in chief Babulal (PW 1) stated that he had handed over written report (Ex.P.1) to the Kotwal Sahib upon which the police had registered a crime and on his report (ExP1) he had put his thumb impression. In cross examination Babulal (PW1) stated that he besides Ramu (PW 2), Moti Asharam and other village people had also gone to the spot but he reached the spot first in time and after they reached there the police had come to the spot at about 8 or 8.15 P.N. Again in cross examination he stated that report (Ex.P.1) was got written by him through police officials. Ramu (PW 2) in his cross examination stated that it is wrong that he was not at the spot. Though Ramu (PW 2) in his cross examination stated that he put thumb impression on the report lodged to the police but he stressed that while at the police station, the report lodged was the same which he narrated above in his statement, and even he stated that it is correct that on that report, Babulal (PW 1) had also put his thumb impression. In this view of explicit evidence brought on record, in our considered opinion, it cannot be held that origin of the first information report (ExP1) lodged by Babulal (ExP1) is shrouded in dubious circumstances, as per defence version whereas contrarily, the prosecution has successfully proved the versions disclosed by informant Babulal (PW1) in written report (Ex.P.1), inasmuch as we find no force in the contention urged during arguments of the appellants Counsel so also reiterated in written submissions that Ex.P.1 did not carry thumb impression of PW1. Babulal (PW 1) informant and Ramu both who have witnessed the occurrence of infliction of blows at the instance of the appellants, have proved the written report (Ex.P.1) beyond any doubt as it stands corroborated in all material particulars. Merely because the police reached the spot on a telephonic information it cannot be held that telephonic information being transmitted first in time to the police would be the first information and not the other one being handed over at the spot by written report. That apart, Manvendra Singh SHO PS Sawai Madhopur (PW 10) in his examination in chief stated that on 30.8.98 he received a telephonic information at about 7.50 PM as to the murder of Harphool (deceased) in the jungle of Bhadlav and therefore, upon taking note into writing in daily diary book (Rojnamcha) Ex.P.15) that telephonic information having been received by unknown person, he alongwith other police personnel proceeded for the spot and reached there at about 9PM. He has proved whatever endorsement made by him and his subordinates at the written report (Ex.P.1). In cross examination he stated that the person giving telephonic information had not disclosed his name and had only disclosed name of the deceased as Harphool and not the names of accused, inasmuch as further not disclosed names of family members of deceased. He denied to have written the report (Ex.P.1) in his presence but he stressed that report was given by Babulal (PW1). He denied to have written the report (Ex.P.1) in his presence but he stressed that report was given by Babulal (PW1). Hence, in our opinion written report (Ex.P.1) on the basis of which the police registered FIR (Ex.P.21) No. 347/98 inspires confidence and in the facts and circumstances of the case, telephonic information cannot be treated as FIR and it was merely an intimation to the police as to the murder of deceased and on the basis of which it moved to the spot where dead body was lying and where written report was given by the informant after getting it written, to the police giving sequence of the incident in detail and such it stands fully authenticated. (13). Even otherwise, as propounded by the Apex Court in Sunil Kumar vs. State of MP (supra), in case of telephonic information received by the police, which was proved to be recorded in the daily diary book (ExP15), the same entry disclosed notwithstanding the absence of the names of the assailants or cognizable offence, but indeed it was on the basis thereof that Manvendra Singh (PW 10) the IO proceeded for the place of incident where he was given written report (ExP1) but not recorded by him (PW 10) as proved in his statement, at the worst, telephonic information recorded in daily diary book (ExP15) can be treated as first information and written report (ExP1) can undoubtedly be treated a statement (U/s 161 Cr.P.C.) of Babulal who had handed over written report at the spot to the I.O. but such conclusion does not in any way affect the merits of the prosecution case, and does not make the origin of the FIR shrouded in dubious circumstances or shakes the credibility of the prosecution case as so contended by the appellants Counsel. We quote here relevant observation made by the Apex Court in para 20 of its judgment in Sunil Kumars case (supra) as under:- ``It is not disputed that PW3 did give an information to the police station wherein he stated that one person had been killed and another person had been dismembered and it was recorded accordingly in the diary book (Ex.P/17). The same entry discloses, notwithstanding the absence of the names of the assailants therein, a cognizable offence and indeed it is on the basis thereof that PW6 initially started their investigation. Ext. The same entry discloses, notwithstanding the absence of the names of the assailants therein, a cognizable offence and indeed it is on the basis thereof that PW6 initially started their investigation. Ext. P/17 will therefore be the FIR and the statement of Ramesh (Ext. P2) which was recorded by him in course of the investigation is to be treated as one recorded under Section 161 Cr.P.C.. The conclusion of ours, however, does not in any way affect the merits of the prosecution case for we find that immediately after PW 1 was taken to the hospital his statement was recorded as a dying declaration which consequently upon his survival, is to be treated only as a statement recorded under Section 164 Cr.P.C. and can be used for corroboration or contradiction. (14). However, without disputing the ratio of decision in Sunil Kumars case (supra), we may point out that in the instant case, telephonic information was given by unknown person whereas in cited decision such as information was given by PW 3 whose statement was recorded in the hospital which was treated as statement recorded u/S. 161 Cr.P.C. on which the police had lodged FIR. Hence in the facts of the present case, telephonic information (ExP15) cannot be treated as first information and only written report (ExP1) given to the I.O. at the spot can be treated as FIR which doesnt in any way affects the merits of prosecution case. (15). Next contention urged by Shri Sahni is that Manvendra Singh (PW 10) stated that the dead body was removed on the day of incident without site plan being prepared because of fear of the wild animals and the site plan was prepared next day whereas all attesting witnesses have stated that site plan was prepared on the day of incident itself when the dead body was removed so it is highly doubtful that the body of deceased was not found at the place shown by the prosecution and further because Babulal (PW1) stated that there was no fear of wild animals. To examine this contention we have carefully perused statement of Manvendra Singh and other prosecution witnesses. To examine this contention we have carefully perused statement of Manvendra Singh and other prosecution witnesses. First of all Manvendra Singh (PW 1) deposed that the place of incident being situated in the jungle so also the time of incident being night when the police reached there, and further because of rainy season, with a view to keep autopsy in security so as to avoid any tampering therewith, the dead body was got lifted from the place of incident that very day so as to prepare inquest next morning. The inquest report of autopsy of deceased was prepared on 31.8.98 in the morning before autopsy was conducted by the medical jurist at about 8.30 A.M. Even the IO (PW 10) has proved site plan (Ex.P.6) so also the seizure memo (Ex.P.4) of blood smeared soil & controlled soil having been lifted from the place of incident. Ex.P.4 was prepared on 30.8.98 when the dead body was being lifted from its place on 30.8.98 and was being taken into custody vide Ex.P.5. Nothing has been elicited during cross examination by the defence as to the site plan being prepared next day inasmuch as while preparing site plan next day, a note was put up by the I.O. which shows that blood of deceased was lying at the place of incident which was lifted on 30.8.98 because of fear of wild animals and apprehension of rain with a view to avoid tampering with till site plan was prepared. That apart, in the night hours, it was not possible to have prepared site plan perfectly. Though both of the attesting witnesses Moti (PW 4) and Asharam (PW 6) in examination in chief deposed that the police had prepared site plan (Ex.P.2) in their presence and it bears their signatures so also Ex.P.4 and other memoes Ex.P.5, Ex.P.7, but in cross examination he stated that site plan and inquest report were prepared on the very day. These witnesses are rustic villagers and are not acquainted with the police proceedings so also preparation of memoes so obviously whatever the police had done in their presence, they witnessed it and put their signatures or thumb impressions wherever required at the respective memoes as attesting witnesses. These witnesses are rustic villagers and are not acquainted with the police proceedings so also preparation of memoes so obviously whatever the police had done in their presence, they witnessed it and put their signatures or thumb impressions wherever required at the respective memoes as attesting witnesses. Hence in our considered view merely because their version in cross examination varies as to the time of memoes being prepared with that given out by the I.O. these recovery memoes in our considered opinion dont loose their significance. Nothing has been elicited by the defence to show that the memoes to which they were attesting witnesses were not prepared in their presence, nor they have deposed that they were not witnesses to the seizure or other memoes nor they deposed that their thumb impressions were taken on blank papers. Rather from their evidence it is proved that they had put their thumb impression & signature on respective memoes to which they were attesting witnesses so also preparation of those memoes in their presence. (16). Furthermore, we do not find any substance in the contention of Shri Sahni that arrest of Roop Singh has not been proved as his arrest memo was not got exhibited. Ex.P.3 is arrest as well as search memo of accused Roop Singh which has been proved by the IO (PW 10) so also its attesting witnesses, inasmuch as disclosure of information as to the weapon of offence having been hidden and then to get it recovered at the instance of the accused from the hidden place. Thus both the arrest followed by recovery of weapon of offence stands proved and established on the record and we find no justifiable reason to disbelieve or doubt the prosecution case. The recovery of weapon of offence viz. the lathi was got done at their instance also proves the factum of their arrest. Ex.P.8 is arrest and search memo of accused Budhi. (17). To apply Sec. 27 of the Evidence Act, two essentialities are: (1) that the person giving information must be an accused of any offence, and (2) he must also be in police custody. the lathi was got done at their instance also proves the factum of their arrest. Ex.P.8 is arrest and search memo of accused Budhi. (17). To apply Sec. 27 of the Evidence Act, two essentialities are: (1) that the person giving information must be an accused of any offence, and (2) he must also be in police custody. The provisions of Sec. 27 are based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded that the information was true and consequently such disclosure can safely be allowed to be given in evidence because if such an information is further fortified by the discovery of articles or the instrument of crime and which leads to the belief that the information about the confession made as to the articles of crime cannot be false. In the instant case, disclosure made by the appellants as to the instrument of crime, i.e. lathi or batons, vide Exs P 16, P17, P 18, & P 19, these disclosures are confirmed by the recovery of the incriminating articles (lathi/batons) and, therefore, there is very reason to believe that the disclosure statement was true and the evidence led in that behalf is also worthy of credence. Thus disclosure of information u/S. 27 of the Evidence Act so also the recovery of the incriminating articles pursuant thereto cannot be said to be unworthy of credence merely because recovery of lathi (batons) carrying blood stain marks was not proved for want of serologist report or because these incriminating articles were not shown to the medical expert. The present one is a case where the conviction has been based on direct evidence, which has been held to be worthy of credence. Further, once the evidence u/S. 27 of the Evidence Act stands proved by the investigating officer, the recovery cannot be held as doubtful and we do not find any good reason to suspect the truthfulness of such records of the police on the circumstances pointed out by the defence i.e. absence of serologist report or failure on the part of prosecution to show recovered weapon of crime to the medical expert. (18). (18). In Kansra Behera vs. State of Orissa (3), the accused got recovered blood stained clothes but as per the serologist report though clothes were stained with human blood but blood group was not indicated besides dimensions of blood stains on clothes. The Apex Court observed that though it could not positively be connected with the deceased and the evidence about the blood group is only conclusive to connect the blood stains with the deceased and in the absence of such evidence this was not a circumstance on the basis of which any inference could be drawn. It was a case based on circumstantial evidence including circumstances of : (1) extra judicial confession made by accused who was absconding, four years after offence and (2) that accused and deceased were last seen together before murder, wherein weapon of offence was recovered from another accused who had grudge against the deceased and who had been discharged. Hence evidence of last seen together was held as of no consequence and that no reliance could be placed on the confession. (19). That apart, the incident took place on 30.8.98, the appellants were arrested & searched after about a week, on or about 6.9.98 and 7.9.98 and on the next day of their arrest they got recovered weapon of crime viz. lathi (batons) which were alleged to have been smeared with blood. Obviously even if the blood was found on recovered lathis and sent for chemical or serologists report, such blood could not have been sufficient to detect either of human origin or otherwise. But such is not the circumstance on which the trial court has based its findings of conviction recorded against the appellants, hence in our considered view, merely on this insignificant circumstances in the facts of the present case, whose prosecution case cannot be thrown out of consideration nor the appellants are entitled to acquittal. (20). Next question which falls for our determination is whether the appellants are the authors of the injuries found on Harphool resulting into his death in the incident. It is the case of the defence that the prosecution case hinges on evidence of eye witnesses Babulal (PW 1) & Ramu (PW 2). (20). Next question which falls for our determination is whether the appellants are the authors of the injuries found on Harphool resulting into his death in the incident. It is the case of the defence that the prosecution case hinges on evidence of eye witnesses Babulal (PW 1) & Ramu (PW 2). In their evidence both of them have proved the factum of lodging of the written report so also their statements recorded by the police u/S. 161 Cr.P.C. during investigation, which contained earliest prosecution versions and the story unfolded in written report (Ex.P1). From their evidence it stands established that on 30.8.98 they alongwith Harphool (deceased) had gone to worship in Kachida Mata Temple and when they were returning back and reached near ``Nalla where both the appellants were standing with lathies in their hands and started inflicting lathi blows on the head of Harphool to whom the witnesses tried to rescue but the appellants scolded them not to escape Harphool. The presence of Ramu (PW2) & Babulal (PW1) at the place of incident stands proved in the prosecution evidence. Ramu (PW2) in examination in chief deposed that accused Budhi was having baton (Danda) in his hand with which he inflicted blow on the front of head whereas accused Roop Singh duly armed with lathi inflicted blow at the back of the head of Harphool and thereafter they repeated infliction of batons blows four five times on the head of Harphool and one blow was inflicted on the shoulder. In cross examination he deposed that Harphool had sustained five injuries but he felt himself unable to state as to which of the injuries was inflicted on which of parts of the body of the deceased; and further deposed that after infliction of blows by the accused, as a result thereof, Harphool fell down the ground. He denied to a suggestion in cross examination that Harphool sustained injury due to his fall on the ground. According to the medical evidence, out of nine injuries, five injuries (Nos. 1 to 5) were lacerated wounds on occipital region of scalp on bone deep. Injury Nos. 2 & 3 were opined by the doctor as dangerous to life in the ordinary course of nature having been caused by blunt weapon. According to the medical evidence, out of nine injuries, five injuries (Nos. 1 to 5) were lacerated wounds on occipital region of scalp on bone deep. Injury Nos. 2 & 3 were opined by the doctor as dangerous to life in the ordinary course of nature having been caused by blunt weapon. In this view of corroborative evidence of the prosecution as to the authorship of injuries caused by the present appellants on the person of deceased Harphool who succumbed to those injuries in the impugned incident on the fateful day, no other inference can be drawn except that the same were caused by the present appellants as a direct result of lathi blows which they were wielding at the time of incident. It is a sound rule of prudence that where the facts stated by eye witnesses substantially conform to and are consistent on material points from the facts stated earlier to the police either in FIR or statements recorded in case diary and are also consistent in all material details as well as on vital points there would be no jurisdiction or any valid reason for the court to view their evidence with suspicion or cast any doubt on such evidence. (21). In Kartarey vs. State of UP (4), the Apex Court observed that where injuries found are forensically of the same species, e.g. stab wounds, and the problem before the court is whether all or any of those injuries could be caused with one or more than one weapon, it is the duty of the prosecution and no less of the court to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon, and failure to do so may, sometimes, cause aberration in course of justice. In that case the charge against accused Kartarey had been proved to the hilt and he was arrested red handed at the spot near dead body in his house and the blood stained `chhura was seized from him. Therefore, the Apex Court upheld his sentence and conviction. (22). In that case the charge against accused Kartarey had been proved to the hilt and he was arrested red handed at the spot near dead body in his house and the blood stained `chhura was seized from him. Therefore, the Apex Court upheld his sentence and conviction. (22). In Mohinder Singh vs. State (5), the Apex Court observed that in a case where death is due to injuries or wounds caused by a lethal weapon, it is always the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused. It was a case where it was doubtful whether the injuries attributed to the accused were caused by a gun or by a rifle whereas the case of the prosecution was that the appellant was armed with a gun inasmuch as in his examination it was definitely put to him that he was armed with gun, whereas the evidence of doctor was rejected by the High Court and yet the High Court based the conviction against the accused wholly upon the oral testimony. Hence the Apex Court held that it was a serious thing to rest the appellants conviction wholly upon the oral testimony in the case which has remained unchecked and unconfirmed by expert evidence. (23). Hence, we do not find any merit as to the contentions of Shri Sahni that in the instant case two eye witnesses (PW1 & PW2) pin point beyond any speck of doubt that they are not eye witnesses or that the prosecution has planted them with a view to seek conviction of the appellants. (23). Hence, we do not find any merit as to the contentions of Shri Sahni that in the instant case two eye witnesses (PW1 & PW2) pin point beyond any speck of doubt that they are not eye witnesses or that the prosecution has planted them with a view to seek conviction of the appellants. Merely because (1) Babulal (PW1) deposed that Budhi assaulted on the forehead & Roop Singh inflicted on the skull and the beating continued upto 5-6 minutes; that ExP1 was got scribed by him through police official; that the site plan was prepared at about 8.30 - 9 P.M. on the occurrence day; that his thumb impressions were taken by the police on so many papers and the accused were not arrested before him and that Roop Singh is a shepherd and was grazing his goats at the way to Kachida Mataji temple; and (2) Ramu (PW2) deposed that Budhi assaulted Harphool on his forehead while Roop Singh inflicted blows on the rear side of skull of Harphool; that he did not understand date of the incident which was revealed to him by advocate & in cross examination stated that the assault initiated by the accused continued for one hour and he stated so many facts to the police in his what those have not been incorporated in his statement, we do not find any force in the contention on behalf of the defence that the evidence of these ocular witnesses is full of inconsistencies with their earlier versions given out in their statements recorded under Sec. 161 Cr.P.C. resulting in omissions and therefore cannot be relied upon. In our considered opinion the versions pointed out by Shri Sahni (supra) cannot be described as contradictions and omissions or inconsistencies so as to lead to a conclusion that the ocular evidence of prosecution cannot be relied upon to base the conviction against the appellants because having due regard to all the surrounding facts and circumstances prevailing at or about the time of occurrence of an incident, such alleged omissions in the evidence of a witness who was actually present and had seen the occurrence are bound to occur even in the natural course. Once the eye witnesses have corroborated their earlier version given in the FIR and their statements under Sec. 161 Cr.P.C. as to their being present at the time of occurrence and further giving ocular account as to the accused being present at the place of incident so also their participation in the infliction of blows on the deceased resulting into his death, which are material particulars, we do not find that such a consistent ocular evidence of the prosecution can be viewed with suspicion that too on the grounds urged by the defence which do not make the entire prosecution story unfolded in the FIR was doubtful. Merely because Babulal (PW1) was not attesting witness to the arrest memo of the accused therefore, it makes no difference if he stated that the accused were not arrested before him. Rather the versions pointed out by the defence & describing those versions as omissions in fact established on record that Budhi the appellant had inflicted injuries on the forehead and Roop Singh on the skull during the beating which continued for some time and report of which was got scribed by him to the police and further that Roop Singh being shepherd was present at the place of incident which was the way to Kachida Mataji Mandir where they were grazing their goats. Nothing has been elicited during cross examination that these eye witnesses by the defence to establish that either they or the accused were not present at the scene of occurrence. Rather, we are of the view that the defence has not been successful at all in cross examination of the said witnesses to demolish their ocular version on material particulars. The defence has failed to elicit any information during cross examination to these ocular witnesses as to what were those so many facts allegedly disclosed to the police but could not allegedly be incorporated in police statement. Unless those so many facts were got elicited in cross examination by the defence, the Court feels handicapped to appreciate as to whether those facts are material to the ocular account of the science of occurrence or not and failure to do so-whether casts doubt on the edifice of the prosecution case, itself. Unless those so many facts were got elicited in cross examination by the defence, the Court feels handicapped to appreciate as to whether those facts are material to the ocular account of the science of occurrence or not and failure to do so-whether casts doubt on the edifice of the prosecution case, itself. Hence merely because the ocular witness deposed in cross examination that he stated so many facts to the police but could not have been incorporated by the police in his statement u/Sec. 161 Cr.P.C., his other part of evidence which is consistent and unimpeachable evidence cannot be discarded. (24). It is settled law that if a witness is not reliable, he need not be false and even if the police have trumped up one witness or two or has embroidered the story to give a credible look to their case that cannot defeat justice if there is clear and unimpeachable evidence making out the guilt of the accused. We are also conscious of the law that it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between `may be and `must be is long and divides vague conjectures from sure conclusions. We are persuaded that Babulal (PW 1) & Ramu (PW 2) are witnesses for truth. The testimony of these two ocular witnesses does not suffer from any infirmities as so pleaded by the defence. (25). Thus the learned counsel for the appellants has got fallacious impression that these two ocular star witnesses are stark sellers of the falsehood & fabrication fathomlessly and in our considered view their testimony merits cognizance and inspires confidence as to credibility therefore cannot be thrown beyond the audibility or visibility of law because of their subsequent conduct. According to the learned counsel for the defence, their subsequent conduct did not correspond to the natural human conduct because (1) they did not make any attempt to scare the accused away by throwing stones as there was no dearth or shortage of stones in the jungle; (2) they did not sense the damage done to the deceased but they made a beeline for the village whereas natural conduct demands that the deceased should have felt shaken for any sign of life by these eye witnesses. In our considered view, no hard and fast rule of universal application as suggested by Shri Sahni with regard to the reaction of a person or subsequent conduct of eye witness in a given circumstance can be laid down. When a person happens to see or come across a cruel act being perpetrated within his sight then there is a possibility that he may lose his equilibrium and balance of mind and therefore he may remain as a silent spectator till he is able to reconcile himself and then react in his own way. There may be a person who may react by shouting for help while others may even choose to quietly slip away from the place of occurrence giving an impression as if they have seen nothing with a view to avoid their involvement in any way in the fray at the peril of their own life with a zeal to scare away the assailants and save the victim from further assaults. (26). It is cardinal principle of criminal jurisprudence that it is for the accused through cross examination of witnesses or through any other materials to show that the evidence of witnesses or Police Officer is either unreliable or atleast unsafe to be acted upon in a particular case, because once the facts and events of the scene of occurrence which the witnesses had seen at the time of incident are shown by the prosecution to exist, the Court can raise statutory presumption and it would, in such an event, be for the accused to rebut the presumption. In our view the defence has failed to establish any inimical motive on the part of the witnesses so as to falsely implicate the accused appellants. Merely because the eye witnesses failed to make any attempt to scare the accused away by throwing stones or that they made a beeline for the village by consigning the deceased to his fatality, their presence at the place of incident cannot be held to be doubtful. Merely because the eye witnesses failed to make any attempt to scare the accused away by throwing stones or that they made a beeline for the village by consigning the deceased to his fatality, their presence at the place of incident cannot be held to be doubtful. These eye witnesses by their clear and unimpeachable evidence have established that they alongwith deceased were returning from Kachida Mataji Mandir by passing through jungle and in the way to this holy shrine, when they reached on their return to the village near anicut, the appellants having lathies (batons) in their hands started beating Harphool by inflicting blows on the forehead and skull and they have also established that at the place of incident the appellants used to graze their goats. Thus presence of the appellants at the place of incident has been proved beyond doubt so also the credibility of the witnesses. From their evidence it is established that they had tried to rescue the deceased but the appellants scolded them not to intervene. Merely because they did not scare away the accused by throwing stones, it does not render the prosecution story wholly unreliable for being discarded. It depends upon the sequence of the incident as to how the witness has to react because they have also to keep in mind the state of mind of the accused in which he was acting for commission of offence at the time of incident. In the instant case, the appellants were having lathis in their hands and with which they inflicted blows straightway on the forehead and skull of the deceased proves their involvement in crime and only because of their infliction of lathi blows the deceased had fallen to the ground whereupon the accused had run away. These witnesses had in the normal course no option except to act as has come in their evidence especially when the time of incident was of dawn before Sun set and the place of incident was of jungle, so they first rushed to the village to inform family members of the deceased and then returned back to the place of incident and thereafter the police had reached. Thus in our considered view, the deceased was not left in lurch but rather subsequent conduct of the witnesses was natural in the ordinary course and hence there is no reason to discard their testimony. Thus in our considered view, the deceased was not left in lurch but rather subsequent conduct of the witnesses was natural in the ordinary course and hence there is no reason to discard their testimony. The defence has thus failed to demolish or shaken the evidence of the eye witnesses during cross examination on material particulars so as to seek acquittal. (27). Further we find no merit in the contention of Shri Sahni as to the motive. It is not a sine qua non for the prosecution that the motive must be proved, as has been laid down in Krishna Pillai vs. State of Kerala (6), according to which so long as other evidence remains convicing, if it is not open to reasonable doubt, conviction may well be based on it. We are further fortified by the observations made in Shivaji Sahabrao vs. State of Maharashtra (7), that proof of motive satisfied the judicial mind about likelihood of the authorship of the crime but its absence only demands deeper forensic search and cannot undo the effect of evidence otherwise sufficient. Motives of men are often subjective, submerged and unamendable to easy proof that Court have to go without clear evidence thereon if other clinching evidence exists. (28). It is the case of the defence that a simple altercation in the morning of that fateful day over buffalos straying into the deceaseds field could not brew up to such a situation resulting the accused to take the life of the deceased and therefore the prosecution has blown the case out of all proportions into a sensational lie that would seek to appear as a real incident of murder at the instance of the accused with the intention and premeditation to do so. We may observe that nothing has been elicited during cross examination of the eye witnesses or others as to the circumstance of any cause of premeditation or fight or altercation either of morning incident or at the time of impugned incident, nor any circumstances have been established either during cross examination or by adducing any defence evidence to show that eye witnesses were false or that the circumstances are alive to utterly expose the lies blow for blow and thrust for thrust. No circumstances have been established even either from the prosecution evidence or otherwise that there was sudden and grave provocation culminating into the impugned crime with a view to project that the accused had no intention to liquidate the deceased. (29). Here let us have a resume of the decisions cited at the bar. (30). In Bahadur Naik vs. State of Bihar (8), while considering the contention of the defence counsel that the conviction for offence of murder deserved to be converted to be one u/S. 304 IPC either Part I or Part II thereof the Apex Court held that on fact there was no premeditation inasmuch as the premeditation could develop on the spot as well but it all depends upon the facts and circumstances of the case and since in that case, the deceased was given 5/6 dagger blows, the Apex Court held that in view of the evidence on record the contention for converting the conviction from murder to culpable homicide not amounting to murder cannot be accepted. It was a case where even non examination of investigating officer was held to be not of consequence when defence had failed to shake creditability of eye witnesses or to point out any material contradiction in prosecution case. (31). In Sikander vs. State (9), for considering ingredients of Exception 4 of Sec. 300 IPC, the Apex Court observed that ``fight postulates a bilateral transaction in which blows were exchanged between the parties; intervening and entreating the accused not to inflict blows on his father would not amount to `fight. In that case accused acted in a most cruel manner by inflicting a number of dagger blows on his helpless stepmother any younger sister. So, on facts, the Apex Court held that even assuming that there was no premeditation and the act was done in the heat of passion because of a sudden quarrel amongst family members and that the accused had used the dagger which was brought out by his brother for inflicting injuries, the main requirements viz, it was a case of sudden fight and the accused had not taken undue advantage or acted in a cruel manner, are not satisfied. The Apex Court placed reliance upon its earlier decision rendered in Surinder Kumar vs. Union Territory Chandigarh (10), wherein after analysing the ingredients of Exception 4 of Section 300 IPC the Court observed as under:- ``To invoke this exception four requirements must be satisfied, namely (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion, and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the off- ender must have acted in a fit of anger. Ofcourse, the offender must not have taken any undue advantage or acted in a cruel manner. (32). In Swaran Singh vs. State of Punjab (11), eye witnesses accounts showing accuseds involvement was held not only consistent but also corroborated by material evidence and site plan, photographs showing position of the dead bodies and blood stained earth collected from the spot where the bodies were found supporting the prosecution case. The Apex Court then held that merely because one portion of evidence of eye witnesses is disbelieved does not mean that court is bound to reject all of it and further that non acceptance of eye witnesses account regarding involvement of the co-accused in the offence would not render their evidence in respect of involvement of the accused suspect. The Apex Court also held that minor discrepancies in the testimony of investigating officer due to delayed trial it was not unlikely that he would not remember the details of the investigation and therefore on fact discrepancies did not affect credibility of the prosecution case. (33). The Apex Court also held that minor discrepancies in the testimony of investigating officer due to delayed trial it was not unlikely that he would not remember the details of the investigation and therefore on fact discrepancies did not affect credibility of the prosecution case. (33). Having benefited by the enlightments derived from the afore quoted decision, we find that it all depends upon the facts and circumstances of each case and in the instant case even if there was no premeditation which could develop on the spot as well but it must be proved in evidence on record which having failed to do so here, in our view the contention for converting the conviction from murder to culpable homicide not amounting to murder, cannot be accepted in view of clinching and unimpeachable evidence on record. Even the cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault and number of wounds caused during the incident is not a decisive factor and significant thing is that the incident must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Nothing has been elicited in the evidence to satisfy the ingredients of Exception 4 of Section 300 IPC so as to convict the appellants u/S. 304 Part II, IPC. We lent support from the decisions in Bahadur Naik vs. State of Bihar (supra) and Sikander vs. State (supra). (34). Thus we are of the opinion that the prosecution has unfolded and disclosed its case in a most natural manner and there is no scope for imaginary doubt about correctness of the version. The trial Court has rightly satisfied that eye witnesses are truthful and their presence at the time of occurrence has been proved beyond reasonable doubt. Thus no adverse inference can be drawn in the facts and circumstances of the present case as put forth by the defence, nor whole prosecution case can be rejected as on the assertions of the defence. The prosecution has proved its case beyond all reasonable doubt and there is no scope for giving any benefit of doubt to the accused appellants. The prosecution has proved its case beyond all reasonable doubt and there is no scope for giving any benefit of doubt to the accused appellants. Keeping in view the nature of the injuries and the part of body i.e. forehead & skull at which the lathi blows were inflicted by the accused appellants and the impact was so serious that Harphool sustained multiple fracture pieces of occipital bone with depressed and integrated into brain matter inasmuch as there was laceration of brain matter on occipital lobe of hemisphere as has been opined by the doctor during post mortem examination on dissection of scalp and that being so injury Nos. 2 & 3 were opined as dangerous to life in ordinary course of nature caused by blunt object. Thus it is fully established that accused appellants had intentionally caused such bodily injuries as they knew to be likely to cause the death of Harphool and that being so they inflicted lathi blows on the forehead and skull by repeating it on Harphool having fallen on the ground resulting in multiple fractures. As such they committed the offence of murder. There is no other by prosthesis to be drawn other than the guilt of accused. (35). Resultantly, as from the evidence on record, we are satisfied that the appellants committed murder of Harphool. Consequently, we uphold the judgment of the trial Court and hereby dismiss their appeal. The appellants who are in jail be detained to serve out the remaining sentence as imposed upon them by the trial Court and upheld by this Court.