M. A. KHAN, J. ( 1 ) THIS is an appeal against the judgment and order dated 3-2-1981 passed by Sri C. P. Misra, the then Addl. District and Sessions Judge, Varanasi thereby convicting the appellants of the offences punishable under Section 302 read with Section 149, I. P. C. and sentencing them to undergo imprisonment for life. The appellants have further been held guilty of the offence punishable under Section 323 read with Section 149, I. P. C. and have been sentenced to undergo R. I. for a period of one year each. The appellants have further been sentenced to undergo R. I. for a period of one year each for the offence punishable under Section 147, I. P. C. All the sentences have been made to run concurrently. ( 2 ) FACTS leading the prosecution of the appellants are that on 11-10-1979 the informant Moti Chand had gone to see the Mela of Bharat Milap at Mangari Bazar, P. S. Phoolpur, Varanasi. There he met Shiv Shankar Singh (deceased) son of Sadaphal Singh, resident of Village Bhanpur, P. S. Phoolpur as he had also come to see the said Mela. They both remained there together. Shiv Shankars father-in-laws house was in the same Mangari Bazar and so after seeing Mela they both went there and stayed in the night. In the next morning at 8. 00 a. m. Moti Chand and Shiv Shankar both proceeded to their house on the motor-cycle of Moti Chand, who was driving it and Shiv Shanker Singh was sitting behind him on that. While on their way at about 8. 30 a. m. they reached near the pumping set of Bhaggan Singh alias Vibhuti Narain Singh resident of village Khurra, the accused Bansh Narain Singh son of Markandey Singh all of a sudden came on the way and instigated saying that let the deceased Shiv Shanker Singh be killed and be not spared as luckily he was found by them on that day. In the meantime, from the Arhar field in the two sides the other accused persons, namely, Pyare Lal, Prem Chand, Maharaj Narain and Ram Kishan, who were hidden there, came out having Lathis fitted with iron rings. At first the accused Pyarey Lal assaulted and felled down Moti Chand and thereafter the accused persons started assaulting Shiv Shanker-deceased with their Lathis and killed him on spot. At first the accused Pyarey Lal assaulted and felled down Moti Chand and thereafter the accused persons started assaulting Shiv Shanker-deceased with their Lathis and killed him on spot. Moti Chands request to spare the deceased was of no avail and the accused persons paid no heed to that. On the alarm raised by them, the witnesses Rama Shanker, Jagdish, Satya Narain, Mattar, Ram Murat residents of Village Chamaroo, P. S. Cholapur and several persons who were returning back from the Mela had reached and witnessed the aforesaid incident. The accused persons after assaulting fled away from the spot. They had killed Shiv Shanker deceased due to long standing enmity. After that, the injured Moti Chand leaving the dead body of Shiv Shanker Singh on the spot went to the police station Phoolpur for lodging the F. I. R. The written F. I. R. Ext. Ka. 1 was lodged by him at 9. 45 a. m. on 12-10-1979. The distance of the place from the police station was about 7 miles east. On the basis of the report Ext. Ka. 1, the chik F. I. R. Ext. Ka. 3 was prepared by the H. C. Shyam Lal Ojha, who had also made entries in the general diary Ext. Ka. 4. The injured and the informant Moti Chand (P. W. 1) was sent through the letter Ext. Ka. 5 for the medical examination along with Constable Banshidhar Tewari to Pindra Hospital, Varanasi. The S. O. Sri Jairam Ali Khan, who was present at the police station took up the investigation himself and he proceeded towards the spot along with constables Ramanuj Sharma and Kamla Shanker for investigation and reached at 11. 30 a. m. and on that day i. e. 12-10-1979 the Investigating Officer had recorded the statements of injured witness Moti Chand and other witnesses Jagdish Narain, Satya Narain, Rama Shanker, Mattar alias Raj Narain and Ram Murat and prepared the site plan Ext. Ka. 7. The panchayatnama of the dead body was prepared by him vide Ext. Ka. 8. He also prepared the diagram of the dead body and kept it in a sealed cover and prepared its Chalan Exts. Ka. 10 and Ka. 9. The dead body of the deceased Shiv Shanker Singh was sent for post-mortem through constable Ramdhani Singh and Balaram Pandey along with necessary papers. Ka. 8. He also prepared the diagram of the dead body and kept it in a sealed cover and prepared its Chalan Exts. Ka. 10 and Ka. 9. The dead body of the deceased Shiv Shanker Singh was sent for post-mortem through constable Ramdhani Singh and Balaram Pandey along with necessary papers. The Investigating Officer took the blood-stained and plain earth from the spot and kept them in a separate sealed boxes, material Exts. 1 and 2, and prepared their Fard Ext. Ka. 11. The Motor-Cycle lying on the spot was also taken by him into custody and was given in the custody of its owner Moti Chand after preparing the Supurdaginama Ext. Ka. 2. On the next day i. e. 13-10-1979 the Investigating Officer further recorded the statements of the eye-witness paras (sic) and he also took the search of the house of the accused persons. On 15-10-1979 the Investigating Officer got arrested the accused Prem Chand and Mahraj Narain in the Court campus, Varanasi and recorded their statements. On that day, the other accused Bansh Narain, Pyarey Lal and Ram Kishun had also appeared in the Court and their statement was also taken by the Investigating Officer on that day. After completing the investigation and receiving (sic) the injury report to Moti Chand he submitted the charge-sheet Ext. Ka. 12 against the accused persons on 15-10-1979. The post-mortem report received afterwards was also sent by the Investigating Officer, vide his supplementary report No. 1 dated 13-2-1980. ( 3 ) THE learned Chief Judicial Magistrate, Varanasi Sri B. L. Sachdeva committed the accused persons to the Court of Session, vide his committal order dated 19-1-1980 as the offence under Sections 147/302/307/149, I. P. C. was exclusively triable by the Court of Session. ( 4 ) THE charges under Sections 147, 302 and 307 read with Section 149, I. P. C. were framed against the accused persons Ram Kishun, Pyarey Lal, Prem Chand, Mahraj Narain and Bansh Narain Singh for having been members of the unlawful assembly, the common object of which was to commit murder of Shiv Shanker Singh and to attempt to commit murder of Moti Chand and they had actually committed the murder by intentionally causing the death of Shiv Shanker Singh on 12-10-1979 at about 8. 30 a. m. in village Khurra near the pumping set of Vibhuti Narain Singh, P. S. Phoolpur, district Varanasi. 30 a. m. in village Khurra near the pumping set of Vibhuti Narain Singh, P. S. Phoolpur, district Varanasi. The charges were read over and explained to them to which they pleaded not guilty and claimed to be tried. ( 5 ) THE prosecution in support of its case examined a number of eye-witnesses and the formal witnesses to prove the case against the accused persons. The eye-witnesses of the incident examined by the prosecution are the informant and the injured witness Moti Chand (P. W. 1) who was driving the Motor Cycle on that day and the deceased Shiv Shanker Singh was sitting behind him when the accused persons had assaulted him and the deceased and killing Shiv Shanker Singh on the spot. He has deposed the facts about the incident and has been cross-examined at sufficient length by the defence. The other witnesses are Rama Shanker Singh (P. W. 2) who had been present in his field at the time of incident and had seen the assault made by the accused persons on the deceased Shiv Shanker Singh and Moti Chand (P. W. 1 ). The other witness of fact examined by the prosecution is Satya Narain Singh (P. W. 6) who had witnessed the incident as he was coming from seeing the Mela on that day. Besides them, the other formal witnesses examined by the prosecution are H. C. Shyam Lal Ojha (P. W. 3) who has proved the writing of chik F. I. R. Ext. Ka. 3 and the entries in general diary Ext. Ka. 4. P. W. 4 Constable Ramdhani Singh has been examined to prove the fact about taking away the dead body for post- mortem examination on that day. Dr. Prakash Narain (P. W. 5) has been examined by the prosecution is to prove the injury report Ext. Ka. 6 showing the injuries sustained by the injured witness Moti Chand (P. W. 1) on 12-10-1979 at 8. 30 a. m. in that incident. The prosecution further examined Prof. B. B. Subramaniyam (P. W. 8) who had conducted the post-mortem examination of the deceased Shiv Shanker Singh on 13-10-1979 at 10. 30 a. m. He has proved the ante- mortem injuries on the body of the deceased Shiv Shanker Singh as mentioned by him in the post-mortem examination report Ext. Ka. 13. The prosecution further examined Prof. B. B. Subramaniyam (P. W. 8) who had conducted the post-mortem examination of the deceased Shiv Shanker Singh on 13-10-1979 at 10. 30 a. m. He has proved the ante- mortem injuries on the body of the deceased Shiv Shanker Singh as mentioned by him in the post-mortem examination report Ext. Ka. 13. Lastly, there is statement of the I. O. Sri Jairam Ali Khan (P. W. 7) who had investigated the case. He has proved the aforesaid statement given to him by the witnesses under Section 161, Cr. P. C. and also the preparation of the site plan Ext. Ka. 6, Panchayatnama Ext. Ka. 8, Challan Lash Ext. Ka. 9 and taking of the blood-stained earth Exts. 1 and 2 and its Fard Ext. Ka. 13 (sic ). Thus the prosecution by the aforesaid evidence has sought to prove and establish the guilt of the accused persons to have committed the murder of Shiv Shanker Singh deceased in that incident and attempt to commit the murder of Moti Chand for causing injuries on his head in that incident. ( 6 ) THE case of the defence is that of complete denial and it has been stated by the accused persons in their statement under Section 313, Cr. P. C. that they had been falsely implicated out of enmity and litigation with the deceased Shiv Shanker Singh and they had been involved in the case on account of the partisan and inimical attitude of the witnesses Moti Chand, Rama Shanker, Jagdish Singh and Satya Narain who were very much inimical to them along with the deceased Shiv Shanker Singh. They have filed a number of papers to show the alleged enmity and the possible motive for they having been implicated in this case. The papers are the certified copy of the charge- sheet in Case No. 766 of 1973, under Section 379, I. P. C. , P. S. Phoolpur, Varanasi State v. Vijay Bahadur Singh, Satya Narain Rama Shanker Singh and Shiv Shanker Singh (deceased) which was decided on 3-5-77 Ext. Kha. 1. This paper has been filed to show that Satya Narain, Rama Shanker and Jagdish were co-accused along with Shiv Shanker Singh and they all were men of the same party and having a common interest in each other. Kha. 1. This paper has been filed to show that Satya Narain, Rama Shanker and Jagdish were co-accused along with Shiv Shanker Singh and they all were men of the same party and having a common interest in each other. The other papers are certified copy of the charge-sheet No. 628/75, under Section 379, I. P. C. dated 15-6-1971, State through Shiv Shanker Singh against the accused Mahraj Narain and others Ext. Kha. 2, certified copy of the complaint dated 23-6-77, Kashi Nath v. Shiv Shanker and Satya Narain Singh, Ext. Kha. 3, certified copy of the application dated 15-6-1979 by one Haneef against Shiv Shanker Singh and Satya Narain Singh Ext. Kha. 4, copy of decree in Civil Suit No. 97/61, Raj Kishore v. Shiv Shanker Singh and others Ext. Kha. 5, copy of the statement of Gajadhar Singh against Shiv Shanker Singh in the said Case No. 97/61 against Pyarey Lal Singh and Bansh Narain Singh Ext. Kha. 6, copy of the statement dated 31-8-1963 in the said suit Ext. Kha. 7, copy of judgment dated 15-7-1967 in Suit No. 328/65, Jagdish Singh v. Basanti Devi and others Ext. Kha. 8, copy of decree dated 29-7-1967 in Suit No. 328/65 Ext. Kha. 9, copy of surety bond dated 15-5-1979 executed by the witness Moti Chand (P. W. 1) of this case for the accused Jagdish Singh in that case Ext. Kha. 10, copy of affidavit filed by Moti Chand along with the bail bonds for the witness Jagdish Singh in this case and accused in that case under Section 308, I. P. C. , Ext. Kha. 11. It has been filed to show that Moti Chand (P. W. 1) belong to the party of Jagdish Singh and Shiv Shanker Singh. The defence has also filed copy of judgment dated 27-8-1980 in S. T. No. 7/80 of V Addl. Sessions Judge, Varanasi against Jagdish Singh under Sections 308/147/323, I. P. C. Ext. Kha. 12 which has been filed to show that the deceased Shiv Shanker Singh were convicted for three years, copy of charge-sheet in case No. 628/75 Mahendra Nath v. Yadunath, Jagdish Singh and Rama Shanker Singh Ext. Kha. Sessions Judge, Varanasi against Jagdish Singh under Sections 308/147/323, I. P. C. Ext. Kha. 12 which has been filed to show that the deceased Shiv Shanker Singh were convicted for three years, copy of charge-sheet in case No. 628/75 Mahendra Nath v. Yadunath, Jagdish Singh and Rama Shanker Singh Ext. Kha. 13, copy of statement of Shiv Shanker Singh (deceased) dated 30-1-1975 in State v. Mahraj Narain Singh and others under Section 379, I. P. C. This paper has been filed to show that Shiv Shanker Singh (deceased) had appeared as a witness against the accused Mahraj Narain Singh in this case and as such was inimical to him, and copy of statement of Rama Shanker Singh (P. W. 2) in this case, in the aforesaid Case No. 628/75. All these paper filed on behalf of the defence go on to show that there had been a great enmity between the deceased Shiv Shanker Singh and the accused Mahraj Narain Singh and others on account of previous criminal cases in which the deceased had appeared as a witness and in some cases he was implicated as an accused on their behalf and furthermore the witnesses Rama Shanker Singh (P. W. 2) Jagdish Singh were co-accused along with him. The enmity has also been alleged from the side of the prosecution to show the possible motive for the accused persons to have killed Shiv Shanker Singh. Thus in this case the facts about the alleged enmity are such which are double edged sword which can be a ground for implicating the accused persons and at the same time it can equally be a strong motive and reason for the accused persons to have killed the deceased and also caused injuries to Moti Chand (P. W. 1 ). For this we have to look at the direct evidence led by the prosecution in order to prove its case against the accused persons. ( 7 ) THE first point that has been argued by the learned counsel for the appellants is that the medical evidence adduced by the prosecution in this case is inconsistent with the ocular evidence. For this we have to look at the direct evidence led by the prosecution in order to prove its case against the accused persons. ( 7 ) THE first point that has been argued by the learned counsel for the appellants is that the medical evidence adduced by the prosecution in this case is inconsistent with the ocular evidence. It has been submitted by the learned counsel for the appellants that the post-mortem report on record shows that the deceased had sustained as many as three injuries in the shape of chop wounds and these injuries could have been caused by sharp heavy cutting weapon while the weapon of attack as alleged by the prosecution in this case is Lathi fitted with iron rods which cannot be termed as a heavy cutting weapon. Post-mortem examination of Shiv Shanker Singh was conducted by Dr. B. B. Subramaniyam (P. W. 8) on 13-10-1979 at 10. 39 a. m. and he found the following ante-mortem injuries on his person:1. Abrasion with contusion left forearm with middle two-third 12. 5 cm x. 25 cm. 2. Lacerated wound right forearm junction of middle and base one-third 2 cm x 1 cm x 1 cm. 3. Chop wound left forehead 18 cm x 4 cm x brain deep, brain matter exposed and escaping. Lower margin be walled. Upper over hanging. Borders clean cut with irregularity here and there. 4. 2 cm above No. 3 Chop wound 10 cm x 3. 5 cm x brain cavity deep, brain exposed and escaped. Parietal bone fractured and protruding. 5. Lacerated wound 3 cm x 1/4 cm x 2 cm bone underneath wound behind injury No. 4. 6. Chop wound 6. 5 cm and 5 cm x brain cavity deep, brain exposed and escaped. 7. Lacerated wound pinna of left ear and adjacent mastoid area 5 cm x 4. 5 cm x bone underneath fractured. 8. Multiple commuted fracture involving the left lower jaw and upper jaw frontal and base temporal and bone of skull corresponding to injuries Nos. 3, 4, 5, 6 and 7. 9. Contused fracture of the middle of the left arm bone. 10. Multiple bruises on the upper left back of chest 7 cm x 3 cm with normal skin in between. 11. Fracture of ribs below to nine on the left side mid-clavical line. 3, 4, 5, 6 and 7. 9. Contused fracture of the middle of the left arm bone. 10. Multiple bruises on the upper left back of chest 7 cm x 3 cm with normal skin in between. 11. Fracture of ribs below to nine on the left side mid-clavical line. ( 8 ) IN the opinion of the Doctor the cause of death was injuries to brain and multiple fractures of skull. The Doctor also found the stomach containing nothing and the small and large intestine were found empty and nothing was contained therein. The duration of the injury was found to be 24 to 36 hours and in the opinion of the Doctor these injuries could have been caused to the deceased on 12-10-1979 at 8. 30 a. m. The Doctor has been cross-examined at sufficient length from the side of the defence about the nature of injuries and the weapon with which they had been caused and their duration to be in the early hours of the night of 11-10-1979. The Doctor has admitted that the injuries might have been caused at 4 or 5 a. m. on 12-10-1979 and in his opinion most of the injuries might have been caused by some blunt object fitted with iron rings. ( 9 ) A perusal of the injuries Nos. 3, 4 and 6 on the body of Shiv Shanker Singh shows that the Doctor has described these injuries as Chop wounds and the Doctor has admitted in his cross-examination that these injuries could be caused by sharp heavy cutting weapon. On the basis of these injuries as pointed out in the post-mortem report it has been submitted by the learned counsel for the appellants that the Lathies fitted with iron rods could not have caused these three injuries to Shiv Shanker Singh and as such the medical evidence is quite inconsistent with the ocular evidence and the witnesses examined by the prosecution in this case were not at all in a position to see the alleged assault and even the presence of the witnesses examined by the prosecution in this case is highly doubtful. We have considered this argument of the learned counsel for the appellants and we find no force in it. It is admitted that but for the injuries Nos. We have considered this argument of the learned counsel for the appellants and we find no force in it. It is admitted that but for the injuries Nos. 3, 4 and 6, other injuries caused to Shiv Shanker (deceased) were the result of attack by blunt object like a Lathi and the defence has not challenged this fact. The "lacerated wound" as described in the Medical Jurisprudence results out of factory accidents or due to minor encounters. The irregularity or lacerated nature of the edge and the process of tearing as the basis are the two qualities which characterise a lacerated wound. Thus a lacerated wound is always accompanied by a gap or space between the edges. The irregularity of the edges prevents opposition which is possible in incised wounds where the edges are clear cut. It is also mentioned in the Medical jurisprudence that there are certain special types of lacerated wounds which deserve special consideration. If a lacerated wound is inflicted by a pointed and angular weapon like a spike, a spear etc. it is likely to produce a penetrating lacerated wound which penetrates the cavity of chest or abdomen. The diagnostic feature in this rests in the lacerated edge of the wound. The other type of lacerated wound commonly encountered in practice is incised like lacerated wound. This is possible by a stick hitting on skin stretched on a bony background. Such situation is encountered on forehead, top of the head, scapula (shoulder blade) and even top of the shoulder. This is because of tearing of the skin and looks like an incised wound. But this can be confirmed by examining the edge under a Magnifying lens. ( 10 ) AS against it an incised or slash wound is always broader than the edge of the weapon causing it owing to the retraction of the divided tissues. The edges of the wound made by the heavy cutting weapon may not be as smooth as those of wound caused by a light cutting weapon. Chop wounds are caused by a blow with the sharp splitting edge of a fairly heavy weapon. The dimensions of such wounds correspond with the cross section of penetrating blade. The margins are sharp and the edges may show abrasions and bruising with marked destruction of underlying tissues and organs. Chop wounds are caused by a blow with the sharp splitting edge of a fairly heavy weapon. The dimensions of such wounds correspond with the cross section of penetrating blade. The margins are sharp and the edges may show abrasions and bruising with marked destruction of underlying tissues and organs. Such injuries are commonly seen on the exposed and easily accessible parts of the body, such as, the head, face, neck, shoulders etc. They are often accompanied by injuries to the underlying bones also. If in the light of the above observations in the Medical Jurisprudence, the injuries caused to Shiv Shanker Singh are examined deeply, it can be safely inferred that these injuries could have been caused by Lathis fitted with iron rods. The Doctor who had conducted the post-mortem on the body of Shiv Shanker Singh has himself admitted that if after the assault by Lathi fitted with iron rod is made in the manner that Lathi is dragged and stretched then these injuries Nos. 3, 4 and 6 could have been caused to the deceased. The prosecution witnesses who have given eye account in this case have not at all been cross-examined by the defence side on the point as to what was in fact the shape of the iron rods fitted on the Lathis which were weapon of attack in the present case. These iron rods fitted with Lathis would have carried sharp edges and there is nothing in the evidence on record to show that the shape of the iron rods was of blunt nature and these iron rods fitted in the Lathis were not having sharp edges. But for injuries Nos. 3, 4 and 6 Shiv Shanker Singh deceased had sustained contusion, bruises and lacerated wounds and they can certainly be caused by blunt object like Lathi fitted with iron rods. It cannot therefore, be said that the medical evidence in this case is inconsistent with the ocular account given by the three eye-witnesses produced by the prosecution. Even if there is slight variation in the ocular evidence and the medical evidence, it can be safely ignored and on the basis of that slight variation or inconsistency the ocular evidence cannot be totally disbelieved. In this view of ours we stand fortified by the case of Anwar v. State of Haryana, 1997 All Cri R (SC) 529. Even if there is slight variation in the ocular evidence and the medical evidence, it can be safely ignored and on the basis of that slight variation or inconsistency the ocular evidence cannot be totally disbelieved. In this view of ours we stand fortified by the case of Anwar v. State of Haryana, 1997 All Cri R (SC) 529. Similar view has been taken in the case of Prem v. Daula, AIR 1997 SC 715 . In the case of State of Haryana v. Bhagirath, 1999 Cri LJ 2898, the Honble Supreme Court of India has observed as follows :"the opinion given by a medical witness need not be the last word on the subject. Such opinion shall be tested by the Court. If the opinion is bereft of logic or objectivity, Court is not obliged to go by that opinion. Afterall opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the Court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject. " ( 11 ) IN the case of Shivaji Sahebrao Bobade v. State of Maharashtra, AIR 1973 SC 2622 it has been observed by the Honble Supreme Court of India that while appreciating the evidence on record, the Court must not abandon a scientific attitude to medical science. ( 12 ) IF the ocular evidence produced by the prosecution witness is examined in details and if the law laid down by the Honble Supreme Court of India on the point is also kept in mind, it can be safely inferred that the ocular evidence adduced by the prosecution in this case is of unimpeachable nature and it cannot be disbelieved in any manner. It is also an established law that if the evidence of eye-witnesses adduced by the prosecution is of unimpeachable character and is held reliable and credible, even if it is not inconsonance with medical evidence and is at slight variation, then it is the duty of the Court not to ignore the eye account as the medical evidence is just an opinion of an expert and the Court is the best expert. Here in the present case the Doctor who had conducted the post mortem has not ruled out the possibility of injuries Nos. 3, 4 and 6 having been caused by Lathis fitted with iron rods. The duration of injuries is also not disputed in this case. Thus it cannot be said that the medical evidence in this case is at variation with the ocular evidence. ( 13 ) THE direct evidence adduced by the prosecution in this case consists of the statements of Moti Chand (P. W. 1), Rama Shanker (P. W. 2) and Satya Narain (P. W. 6 ). Out of these witnesses Moti Chand (P. W. 1) is also the injured witness and he has stated that on the fateful day and time he was driving the Motor Cycle when he was attacked all of a sudden and he sustained injuries. The same were medically examined by the Doctor and they are neither superficial nor could be self-inflicted. Moti Chand (P. W. 1) has also stated that deceased Shiv Shanker Singh was sitting behind on the same Motor Cycle. Immediately after the occurrence Moti Chand (P. W. 1) went to the police station, lodged a report there and the Investigating Officer visited the spot and prepared the site plan Ext. Ka. 7. The Investigating Officer saw the position of the dead body and also found motorcycle lying on the spot. He also found blood stained earth and the dead body of Shiv Shanker Singh lying on the spot. Moti Chand (P. W. 1) was cross-examined at length and there is absolutely nothing in his cross-examination so as to discredit his testimony in any manner. He also found blood stained earth and the dead body of Shiv Shanker Singh lying on the spot. Moti Chand (P. W. 1) was cross-examined at length and there is absolutely nothing in his cross-examination so as to discredit his testimony in any manner. He has given minute details of the occurrence and has fully withstood the test of lengthy cross-examination and nothing has come out in his cross-examination so as to show that he was not present on or near the scene of occurrence or that he did not sustain injuries in the manner as stated by him or that he was not in a position to see and identify the culprits. The occurrence according to this witness took place on 12-10-1979 at about 8. 30 a. m. and thus in the broad day light and there was no chance or possibility of assailants having not been identified. The defence has tried to suggest that the occurrence might have taken place some where in the early hours of the morning and possibily no body could have witnessed the occurrence. However Moti Chand (P. W. 1) being himself the injured witness has denied such a suggestion. It may be mentioned here that Moti Chand is neither inimical to the accused persons nor he had been friendly to the family of the deceased. He is quite an independent witness and has given a natural description of the entire occurrence and immediately after the occurrence he went to the police station and reported the matter there by way of a written report and the police immediately arrived on the scene of occurrence, examined him and then got his injuries medically examined. We find no reason to discard or disbelieve the evidence of an independent witness Moti Chand (P. W. 1 ). Similarly Rama Shanker Singh (P. W. 2) and Satya Narain (P. W. 6) have also corroborated the statement of Moti Chand (P. W. 1) on all material particulars. They have stated that they were working on the nearby fields and the Investigating Officer has found the field of these witnesses in the vicinity of the occurrence. No doubt these witnesses, are not independent witnesses, yet they are also not hostile to the appellants. They have stated that they were working on the nearby fields and the Investigating Officer has found the field of these witnesses in the vicinity of the occurrence. No doubt these witnesses, are not independent witnesses, yet they are also not hostile to the appellants. They have withstood the test of cross-examination and have consistently deposed before the Court that it was in their view that the appellants had assaulted Shiv Shanker with Lathis fitted with iron rods and killed him on the spot. Thus the presence of these witnesses on or near the scene of occurrence cannot at all be discarded or disbelieved. The motive to commit the crime is also established and proved by the prosecution in this case and even the defence has not denied this fact that there had been illwill between the deceased Shiv Shanker Singh and the appellants. The date, time and place of occurrence is also established and proved by the statement of P. Ws. 1, 2 and 6. Thus from the evidence adduced by the prosecution in this case it is fully established that the deceased Shiv Shanker Singh was assaulted by the appellants in the manner as proved by the prosecution and the presence of Moti Chand (P. W. 1) Rama Shanker (P. W. 2) and Satya Narain (P. W. 6) on or near the scene of occurrence is also established. The prosecution has succeeded in proving beyond all reasonable doubt that the accused persons in furtherance of the common object of all of them assaulted Shiv Shanker Singh (deceased) with Lathis fitted with iron rods and thus committed his murder and they also caused injuries to Moti Chand (P. W. 1 ). The learned trial Court was justified in recording the verdict of conviction against the appellants and we uphold the conviction recorded against the appellants on all Court. The judgment and order dated 3-2-1981 recorded by the learned Additional District and Sessions Judge, Varanasi are hereby confirmed. The appellants are on bail, their bail bonds are cancelled and sureties discharged. The Chief Judicial Magistrate, Varanasi shall ensure their arrests to serve out the sentences as imposed on them by the learned Court below. The judgment and order dated 3-2-1981 recorded by the learned Additional District and Sessions Judge, Varanasi are hereby confirmed. The appellants are on bail, their bail bonds are cancelled and sureties discharged. The Chief Judicial Magistrate, Varanasi shall ensure their arrests to serve out the sentences as imposed on them by the learned Court below. ( 14 ) I have gone through the judgment prepared by my learned brother Hon. M. A. Khan, J. while agreeing with the ultimate conclusion arrived at in the said judgment, I will prefer to give my own reasonings. ( 15 ) AS per the prosecution case the incident in question occurred on 12-10-79 at about 8. 30 in the morning in the vicinity of village Khurra near the purnping set of Bhaggan Singh when deceased of this case Shiv Shanker and Moti Chand, P. W. 1 were proceediing to his house on the motor cycle of Moti Chand. Motor cycle was being driven by Moti Chand and Shiv Shanker Singh was sitting on the pillion. When they reached near the pumping set of Bhaggan Singh @ Vibhuti Narain Singh of village Khurra, accused Bansh Narain Singh all of a sudden came on the road and said "let the deceased Shiv Shanker Singh be killed and be not spared as luckily he has been found on that day. " On this exhortation, from the two sides of nearby Arhar field, rest of the accused persons also came out armed with lathis having iron rings fitted thereon. First of all, Pyare Lal assaulted and felled down Moti Chand. Thereafter all the accused persons started beating Shiv Shanker Singh with their lathi and killed him on the spot. Request of Moti Chand to spare the deceased was not given any heed. On the alarm raised by Shiv Shanker Singh and Moti Chand, the witnesses Ram Shanker Singh, P. W. 2, Jagdish, Satya Narain Singh, P. W. 6, Nattar and Ram Murat of village Chamaroo and several others, who were coming back from Mala, were also attracted to the scene of occurrence. After having killed Shiv Shanker Singh on spot, accused persons fled away with their respective weapons. Moti Chand injured immediately rushed to the police station Phoolpur and lodged written report Ex. Ka. 1 at 9. 45 p. m. , the distance of police station from the scene of occurrence was about 7 miles. After having killed Shiv Shanker Singh on spot, accused persons fled away with their respective weapons. Moti Chand injured immediately rushed to the police station Phoolpur and lodged written report Ex. Ka. 1 at 9. 45 p. m. , the distance of police station from the scene of occurrence was about 7 miles. On the basis of written report, police came into action. Station Officer Jamaim Ali Khan on 12-10-79, itself recorded the statements of Moti Chand, P. W. 1, Jagdish Narain, Satya Narain Singh, P. W. 6, Ram Shanker Singh, P. W. 2, Mattar @ Raj Narain and Ram Murat. On the same day, he reached the scene of occurrence and prepared the site plan, Ex. Ka. 7. It may be mentioned here that at the scene of occurrence, he found one motor cycle (Rajdoot make) bearing No. UPF 5953 belonging to Moti Chand lying along with key in its ignition hole. The same was in workable condition. The motor cycle was given in the custody of Moti Chand through memo Ex. Ka. 2. Blood was also found on the spot. Dead body of Shiv Shanker Singh was also found lying there. After completing inquest the same was sent to mortuary for post-mortem examination. ( 16 ) INJURIES of injured Moti Chand were examined by Dr. Prakash Narain, P. W. 5 on 12-10-1979 at 11. 45 a. m. and only two injuries were found, (i) Lecerated wound 1/4 cm. x 1/2 cm. deep on left side of forehead, 11/2 cm. above outer side of left eye brow and (ii) Contusion 5 cm. x 3 cm. on back and inner side of left elbow joint. ( 17 ) DR. Prakash Narain in his deposition before the trial Court stated that both the injuries were simple and caused by blunt object like lathi, in the morning of 12-10-1979 at about 8. 30 a. m. He categorically denied the defence suggestion that both the injuries could be received by Moti Chand on account of his fall from Motor Cycle. ( 18 ) DR. V. B. Subramaniyam, P. W. 8 conducted autopsy on the dead body of Shiv Shankar Singh on 13-10-1979 at 10. 30 a. m. The ante-mortem injuries need not be repeated here as they are fully detailed in the judgment of the trial Court. ( 18 ) DR. V. B. Subramaniyam, P. W. 8 conducted autopsy on the dead body of Shiv Shankar Singh on 13-10-1979 at 10. 30 a. m. The ante-mortem injuries need not be repeated here as they are fully detailed in the judgment of the trial Court. ( 19 ) THE motive for committing the murder of Shiv Shankar Singh is said to be long standing enmity of accused with the deceased. ( 20 ) THE case of accused was of total denial and it was stated them that they have been falsely implicated on account of enmity. No witness was examined in defence. ( 21 ) ON consideration of evidence on record, the learned Sessions Judge has found all the appellants guilty for the offence of murder of Shiv Shankar Singh and for causing simple injuries to Moti Chand in furtherance of common object of their unlawful assembly. ( 22 ) LEARNED counsel for the appellants submitted before us that the injuries of Moti Chand, P. W. 1 were highly suspicious and according to him it was doubtful that he received injuries in the same incident wherein the deceased was assaulted. Learned counsel further argued that in any view of the matter it was doubtful that the incident had occurred in day time and the possibility of the incident occurring before sunrise in darkness, is not completely ruled out. It was argued that even if Moti Chand was present and had received injuries in the same incident, the fact that there is a serious discrepancy between medical evidence and ocular testimony supports the defence argument that the incident occurred in darkness. It was submitted that when the weapons of assault could not be located with certainty, it would be doubtful if the witnesses had the opportunity to recognize the assailants. It was further submitted that all the witnesses produced at the trial were interested being highly inimical to the accused persons. It was submitted that when the weapons of assault could not be located with certainty, it would be doubtful if the witnesses had the opportunity to recognize the assailants. It was further submitted that all the witnesses produced at the trial were interested being highly inimical to the accused persons. ( 23 ) ON the other hand, the learned A. G. A. submitted that it has been established beyond doubt that Moti Chand , P. W. 1 had himself suffered injuries at the hand of accused persons in the same incident in which the deceased was done to death and since the incident occurred in broad day light and the assailants were known persons, there could not be any difficulty for Moti Chand and other witnesses in identifying the appellants as assailants. It was further concluded that there was no conflict between ocular testimony of witnesses and the medical evidence. He argued that as the skull of deceased was almost reduced to a pulp and broken into pieces, the doctor who conducted post-mortem examination on account of his inexperience has described some of the injuries wrongly as chopped wounds. In any case such injuries could still be caused by lathi fitted with iron rings having sharp edges. ( 24 ) AS far as motive is concerned, according to the first information report, the murder of Shiv Shankar Singh was committed by the accused persons on account of long standing enmity. Factum of enmity is admitted to accused persons also. A number of documents were filed from defence side, whose details have been given in the judgment of the trial Court. These papers indicate that P. W. 6 S. N. Singh, P. W. 2 Ram Shankar Singh and Jagdish witnesses were co-accused along with deceased, Shiv Shankar Singh in few cases. All these persons thus formed one group. A case was also instituted on the report of Shiv Shankar Singh, deceased against accused, Maharaj Narain and others. Defence has also brought on record papers to show that even witness Moti Chand, P. W. 1 had appeared as a surety for witness Jagdish Singh, who was an accused in a case under S. 308, I. P. C. Exhibit Kha 11 also shows that Moti Chand P. W. 1 belonged to the party of Jagdish Singh and deceased Shiv Shankar Singh. ( 25 ) THE learned Sessions Judge in his judgment has observed himself as under :-"all these papers filed on behalf of the defence go on to show that there had been a great enmity between the deceased Shiv Shankar Singh and the accused Maharaj Narain Singh and others on account of previous criminal cases in which the deceased had appeared as a witness and in some cases he was implicated as an accused on their behalf and further more the witnesses Ram Shankar Singh, P. W. 2 and Jagdish Singh were co-accused along with him. " (To be found on page 166 of the paper book) ( 26 ) THUS, I find that motive in this case was evenly balanced. If on one hand it provided an adequate motive for the accused persons to commit the murder of Shiv Shankar Singh, on the other hand, accused persons could also be nominated falsely due to animosity. In such a situation a heavy burden lies on the Court to scrutinize evidence of the witnesses with great care and caution and therefore we have closely examined the evidence on record. ( 27 ) LEARNED counsel appearing for the appellants strenuously urged before us that the evidence of all the three eye-witnesses produced before the trial Court mainly Moti Chand, P. W. 1, Ram Shankar Singh, P. W. 2 and Satya Narain Singh, P. W. 6 is unreliable and therefore, this Court must come to the conclusion that the prosecution case has not been established beyond reasonable doubt. In his endeavour to point out unreliability of these witnesses, learned counsel for the appellants took us through their whole evidence and after scrutinizing the same with all care and caution, I find myself unable to agree with the submission of the learned counsel and I propose to assign my reasonings for the same. ( 28 ) P. W. 1 Moti Chand has claimed that he was accompanying the deceased at the time of incident. Undisputedly he was a vaidya by profession. He stated that in the night of 11-10-1979 he had gone to Manari Bazar to see fair of bharat Milap. He had gone there on his motor cycle. In the fair he met Shiv Shankar Singh. Undisputedly he was a vaidya by profession. He stated that in the night of 11-10-1979 he had gone to Manari Bazar to see fair of bharat Milap. He had gone there on his motor cycle. In the fair he met Shiv Shankar Singh. They spent much time in the fair and as it became very late, he stayed in the night with Shiv Shankar Singh in village Manari at the house of Baj Bahadur Singh, father-in-law of Shiv Shankar Singh. According to him, on the next morning i. e. 12-10-1979, he decided to leave house of Baj Bahadur Singh early in the morning and when he was about to leave on his motor cycle, Shiv Shankar Singh also accompanied him. He himself was driving the motor cycle while Shiv Shankar Singh sat behind him. When they reached near the pumping set of Vibhuti Narain Singh near village Khurra accused persons suddenly came out. Accused Pyare Lal assaulted him with lathi and when he fell down all the accused persons started beating Shiv Shankar Singh with "kariwali" lathis (Lathis having iron rings fitted thereon ). On their alarm and shrieks, other witnesses including Ram Shankar Singh, P. W. 2, Satya Narain Singh, P. W. 6 also arrived there and when the accused persons were challenged they took to their heels. This witness also proved the written report, which he had lodged at police station at 9. 45 a. m. As already pointed out above, Dr. Prakash Narain had medically examined his injuries on the same day at 11. 45 a. m. At the time of examination injuries of Moti Chand were found fresh in duration. Dr. Prakash Narain had categorically stated that injuries of Moti Chand were neither caused by a fall, nor could be self-inflicted and could be sustained by him at about 8 a. m. in the same morning. Injuries of P. W. 1 Moti Chand were also noted in the general diary at the police station when he reached there and lodged his written report. He was soon sent for his medical examination in police custody, which was done at 11. 40 a. m. on that very day. ( 29 ) THE statement of Moti Chand coupled with the evidence of Dr. He was soon sent for his medical examination in police custody, which was done at 11. 40 a. m. on that very day. ( 29 ) THE statement of Moti Chand coupled with the evidence of Dr. Prakash Narain leaves no room of doubt that Moti Chand sustained blunt object injuries in the morning of 12-10-1979 in the same incident wherein Shiv Shankar Singh was assaulted. Since he himself sustained injuries, his presence at the scene of occurrence is not open to doubt. His evidence that he was going on motor cycle along with Shiv Shankar Singh further gets corroboration from the fact that his motor cycle with keys in the ignition hole was spotted on the spot by the Investigating Officer on the same day when he visited the scene of occurrence and the motor cycle was found to be in workable condition. ( 30 ) LEARNED counsel for the appellants submitted that Moti Chand P. W. 1 in his deposition admitted that when he went to police station to lodge the first information report he had gone on bicycle and not on motor cycle. If in fact, he himself was driving his own motor cycle at the time of occurrence and was in a hurry to lodge the report, he would have rushed to police station on the motor cycle instead of going bicycle, particularly when the motor cycle was still in a workable condition as was found by the Investigating Officer. P. W. 1 Moti Chand has given a very plausible and acceptable explanation as to why he did not go on motor cycle. In paragraph 16 of his cross-examination, he stated that the reason behind that was that he had suffered an injury on his left hand and was feeling pain and giddiness. A perusal of the injury report of Moti Chand indicates that injury No. 2 was a contusion of the dimension of 5 cm. x 3 cm. on back and inner side of left elbow joint. It is of common knowledge that the clutch of motor cycle is changed from left hand and a considerable amount of pressure is required for operating the same. thus, there was nothing unnatural or improbable if this witness decided to go to police station on bicycle instead of motor cycle. For this simple reason his presence at scene of occurrence cannot be doubted. thus, there was nothing unnatural or improbable if this witness decided to go to police station on bicycle instead of motor cycle. For this simple reason his presence at scene of occurrence cannot be doubted. ( 31 ) IT was next urged that the witness had admitted that the residential house of deceased was only 11/2 kas away from the scene of occurrence, yet, as admitted by this witness, he did not inform family members of the deceased before proceeding to police station. According to the learned counsel for the appellants this conduct of the witness was most unusual and opposed to nature, which creates a doubt in his presence at the scene of occurrence. It may be suffice to mention here that this witness had himself sustained two injuries on his person, one on the left side of his forhead and the other on left elbow joint. Moreover, it has also come in evidence that before P. W. 1 Moti Chand left for police station, Ram Shankar Singh, P. W. 2 and Satya Narain Singh, P. W. 6 had also arrived at the scene of occurrence along with Jagdish Narain Singh, Mattar @ Raj Narain, Ram Murat and others. Jagdish Narain Singh was closely related to Shiv Shankar Singh while Satya Narain Singh was resident of the same village to which the deceased belonged. When near relation of deceased and his co-villagers had already assembled at the scene of occurrence, there was nothing unnatural if P. W. 1 Moti Chand decided to go to police station directly from the scene of occurrence instead of first going to the village of deceased to inform his family members. When near relation of deceased and his co-villagers had already assembled at the scene of occurrence, there was nothing unnatural if P. W. 1 Moti Chand decided to go to police station directly from the scene of occurrence instead of first going to the village of deceased to inform his family members. ( 32 ) IT was also submitted by the learned counsel for the appellants that the post- mortem report of deceased Shiv Shankar Singh shows that small intestine and large intestines were all found empty, which will go to show that the deceased had been killed in dark hours of night and the story that the deceased and Moti Chand, P. W. 2 had stayed in village Manari at the house of his father-in-law, Baj Bahadur Singh and had left in the morning is rendered doubtful because it was most unexpected that Shiv Shankar Singh would leave his in-laws place without even having a cup of tea or breakfast when he was leaving at about 8 a. m. as deposed by P. W. 1. As per the statement of P. W. 1 Moti Chand when it became late in the fair he and Shiv Shankar Singh stayed at the house of father-in-law of Shiv Shankar Singh in village Manari and slept there. It could not be disputed that P. W. 1 Moti Chand was practicing as a vaidya and was running his dispensary in village khutaha. According to this witnesses he was in a hurry to go to his dispensary. When he was about to leave on his motor cycle for his dispensary from the house of Baj Bahadur Singh, he was joined by Shiv Shankar Singh. He further stated that before that neither Shiv Shankar Singh nor any member of the family of his father-in-law asked him to have breakfast. It is of common experience that where prople are in a hurry to leave for attending their profession/business or office, they often leave break fast specially when they are not to cover long distance for reaching to their destination. In the present case it is in evidence that Moti Chand was in a hurry to leave village Manori to go to his clinic in village khutaha and when he was preparing to leave, deceased Shiv Shankar Singh also joined him. In the present case it is in evidence that Moti Chand was in a hurry to leave village Manori to go to his clinic in village khutaha and when he was preparing to leave, deceased Shiv Shankar Singh also joined him. It could be that Shiv Shankar Singh might also be having some urgency to reach to his own village and for that reason he might not have liked to waste opportunity of going along with Moti Chand, who was then proceeding on a fast conveyance like motor cycle. Thus the mere fact that the stomach of deceased was found empty will not rule out the possibility of the incident occurring at the time as alleged by the witnesses. It is pertinent to note here that large intestines were also found fully empty. It is, thus, obvious that the deceased had evacuated himself before he was done to death. Had the incident occurred during night hours when deceased was coming back from the fair, as suggested by defence, large intestines would not have been found empty. This circumstance further strengthens the prosecution case that the incident occurred in the morning and not in the night. ( 33 ) AS already stated above, P. W. 1 Moti Chand had himself received injuries and since assault was made from weapons like lathi, the assailants must have come in his close contact. Even when Shiv Shankar Singh was assaulted, this witness remained present in his vicinity and as the incident occurred in broad day light, the witness would have easily seen the faces of persons assaulting him and deceased Shiv Shankar Singh and their appearance and identity would well remain imprinted in his mind. Therefore he would be the last person in roping in innocent persons by shielding the real assailants, who had assaulted him and the deceased, particularly when this witness, who is a respectable person, had no direct enmity with any accused. ( 34 ) THE testimony of P. W. 1 Moti Chand is further corroborated by evidence of witness namely P. W. 2 Ram Shankar Singh and P. W. 6 Satya Narain Singh. Ram Shankar Singh stated that on the day of occurrence he had gone to his, field for bringing fodder for this cattle. According to him his field was situated near the Chak road where the incident occurred. Ram Shankar Singh stated that on the day of occurrence he had gone to his, field for bringing fodder for this cattle. According to him his field was situated near the Chak road where the incident occurred. This part of his statement could not be challenged nor it could be suggested to him that his field was not situated near the place of occurrence. He has also given a vivid account of the incident and has specifically stated of the assault made upon the deceased Shiv Shankar Singh and injured Moti Chand at the hands of the present appellants. He also testified that both Moti Chand and Shiv Shankar Singh were proceeding on Chak road on a motor cycle. Similarly P. W. 6 Satya Narain Singh stated that he had witnessed the incident. According to him he was returning from bharat Milap Fair in the morning of 12-10-1979 and was going on Chak road on foot. Both these witnesses were put to lengthy cross-examination, but nothing has come out in their evidence to the rescue of defence or to create any doubt in the correctness of prosecution story. Their testimony cannot be discarded merely for the reason that they both belonged to the party of Shiv Shankar Singh and were close to him. ( 35 ) NOW, I take up the last limb of argument of the learned counsel for the appellants that on account of material variance between medical evidence and the ocular testimony of eye-witnesses, the prosecution story regarding incident is rendered highly doubtful. ( 36 ) ON the basis of ante-mortem injuries as noted in the post-mortem report and the statement of Dr. V. B. Subramaniyam, P. W. 8, it was argued with vehemence that ante-mortem injuries Nos. 3, 4 and 6 described as chopped wounds could not be caused either by a plain lathi or a lathi having iron rings and they could be the result of a heavy cutting weapon only. ( 37 ) THIS submission of the learned counsel for the appellants has been closely examined and after giving my thoughtful consideration, I find that in the facts and circumstances of the case, this submission can not be accepted so as to discard the testimony of the three eye-witnesses produced at the trial, of whom P. W. 1 Moti Chand was himself an injured. It is true that while describing ante-mortem injuries, the doctor noted injuries Nos. 3, 4, and 6 as chopped wounds and rest as lacerated wounds and bruises. Injuries Nos. 3, 4, 5 and 6 were all on skull. Injury No. 7 was on face. At Sr. No. 8 it was noted by the doctor that there were multiple commuted fractures involving left lower jaw, upper jaw, frontal, parietal, temporal and occipital bones of skull. These fractures were correspending to injuries Nos. 3, 4, 5, 6 and 7. It is, thus, absolutely clear that skull of deceased was almost reduced to a pulp and was smagged into pieces like a melon. Inquest report also indicates that skull of deceased was found completely broken into pieces. In addition to that it is further to be noted that injury No. 3, which was on left forehead was a brain cavity deep injury, brain matter was fully exposed and escaping lower margins were bevelled and upper over hanging. It was further noted by the doctor that the borders were cut with irregularity here and there. It is, thus, apparent that there was a gaping in the margins of the edges and they were irregular. Injuries No. 3 to 6 were all on bony portion of skull. Injury No. 4 was just 2 cm. above injury No. 3. That means it was also on left forehead. It is noteworthy that parietal bone was found fractured, and not cut underneath this injury and was protruding. Injury No. 5 was just behind injury No. 4 and bone underneath was found lacerated. ( 38 ) IT is,thus, obvious that a number of blows had been inflicted on the skull of deceased, which resulted in breaking of the skull into many pieces. All these injuries were on bony part of skull where even a lacerated injury could give impression of an incised injury. Therefore, there was every possibility of the doctor committing a bona fide mistake in deciphering the kind and nature of injury. He could well misunderstood the lecerated injury as an incised injury. Had injuries been caused by a heavy cutting weapon as suggested by defence, the underneath bones would have been found cut instead of being found fractured or lacerated only. The fact that protruding bone was found fractured and not cut as described in injury No. 4 also supports this inference of mine. Had injuries been caused by a heavy cutting weapon as suggested by defence, the underneath bones would have been found cut instead of being found fractured or lacerated only. The fact that protruding bone was found fractured and not cut as described in injury No. 4 also supports this inference of mine. ( 39 ) DR. Subramaniyam in his examination-in-chief has given a clear cut opinion that the ante-mortem injuries of Shiv Shankar Singh could be possibly caused during an attack made by lathi fitted with iron rings. In cross-examination he further opined that injuries No. 3, 4 and 6 were possibly of a heavy cutting weapon, but further admitted that they could be caused also by lathis fitted with iron rings if they were dragged at the time of assault. It will, thus, be seen that the doctor has not ruled out altogether the possibility of the injuries being caused by lathis having iron rings. ( 40 ) IT will also not be out of place to mention that it was not elicited out in cross-examination of the witnesses as to what type and kind of iron rings were fitted in the lathi used by the assailants while making assault on the deceased. It may also be relevant to mention here that the fact that the lathis, which were used in the assault were having iron rings was not a development made at the trial. This fact was categorically disclosed in the first information report itself, which was lodged at police station with all promptness, without having any time for manipulation and consultation. ( 41 ) MY learned brother has dealt with this aspect in detail by making a reference to medical jurisprudence and also to a few decisions of the Apex Court and I need not repeat the same, excepting that the basic characteristics of a lacerated wound are the irregularity or lacerated nature of the edge and the process of tearing. A lacerated wound as always accompanied by a gap space between the edges. The irregularity of the edges prevents opposition, which is possible in incised wounds where the edges are clear cut. The presence of space and the impossibility of opposition necessitates the filling up of the gap by capillary loops which are subsequently covered up by epithelial cells. A lacerated wound as always accompanied by a gap space between the edges. The irregularity of the edges prevents opposition, which is possible in incised wounds where the edges are clear cut. The presence of space and the impossibility of opposition necessitates the filling up of the gap by capillary loops which are subsequently covered up by epithelial cells. ( 42 ) AS already pointed out above, the borders of injury No. 3, which was on left forehead were cut with irregularity here and there. That itself indicates that there was a gap or space between the edges and it appears that on account of the entire skull broken into pieces the doctor conducting post-mortem examination committed a bona fide mistake in describing lacerated wounds as incised injuries. It may be mentioned again for the sake of repetition that the underlines bone were found fractured only and not cut. Had the injuries been incised, in all probability at least some of the underlined bones must have also received cut marks, which in the present case were absolutely absent. Therefore, it cannot be said that there is nay vital or material inconsistency between ocular testimony and medical evidence so as to discard the testimony of witnesses including an injured particularly when incident occurred in broad day light. ( 43 ) FOR the reasons assigned above, in addition those reasons given by my learned brother, I am also of the view that this appeal must fail. Appeal is accordingly dismissed. ( 44 ) CONVICTION and sentences awarded by the trial Court upon the appellants are upheld. Appellants are on bail. They shall be taken into custody forthwith to serve out their sentence as imposed upon them by the trial Court. They are directed to surrender before the Chief Judicial Magistrate, Varanasi within one month and if they do so, their bail bonds shall stand cancelled and surties discharged. In case they fail to surrender during the aforesaid period, CJ. M. concerned shall take all necessary and appropriate steps for their arrest and lodging them in jail for serving out their respective sentences. Appeal dismissed.