By the Court.- The Cr. Appeal No. 123/95R and Cr. Appeal No. 141 of 1995R, which arise out of the same trial, are taken together and are being disposed of by this common judgment. 2. The prosecution case, shortly stated, is that on 30.8.1993 at about 10.00 p.m. Mangla Devi, PW. 5, went to P.S. and made a statement that at about 5.30 p.m. in the evening when her husband Mangal Singh Munda (deceased) was coming from the field and when she went to tie her goat in her old house, at that place Shankar Singh Munda and Turu @ Gurua Munda of village Daruhatu (both appellants of Cr.A No. 123/95R) came and caught hold of her husband from behind and took him near the house of Lakhi Ram Barai PW. 1 and then she ran towards them asking as to why they were taking away her husband. In the meantime, Chamar Singh Munda, Ranjit Singh Munda and Daru Singh Munda (appellants of Cr.A No. 141/95R) armed with Pharsa came from behind and Chamar Singh Munda pushed the informant down and then she fell down, they started assaulting her husband by pharsa on his head and when her husband fell down. Even after his falling down on the ground, the assailants kept on assaulting on head and when the husband died, all the accused persons started dragging the dead body of her husband and again the informant started crying then the people from neighbourhood came there running and then the accused persons fled away, leaving the dead body of her husband. The cause of the murder, according to her, is that Chamar Singh Munda and his brothers had a long litigation with regard to some land and that had led to many litigations in which the informant has been victorious, because of this the appellants were annoyed and pained. Consequently in order to grab the land of the informant, they after deliberation had caught the husband of the informant from behind and after assaulting him with Pharsa had killed. Shankar Munda and Turu @ Gurua fv1unda both were relations of Chamar Singh Munda. One Jagmohan Hazam, P.W 6, of village Barauhatu and Lakhi Ram Baraik, P.W 1, of her village and many others had seen the occurrence. Shankar Munda and Turu @ Gurua fv1unda both were relations of Chamar Singh Munda. One Jagmohan Hazam, P.W 6, of village Barauhatu and Lakhi Ram Baraik, P.W 1, of her village and many others had seen the occurrence. This fardbeyan, according to the informant, P.W 5, was recorded at the P.S. But according to the I.O., P.W. 9, this was recorded at P.O. on the same night at about 10.00 p.m. All the appellants have been charged under section 302/34 I.P.C. and were tried and convicted and sentenced to life imprisonment and furthermore, the accused Chamar Singh Munda, Ranjit Singh Munda and Daru Singh Munda were slapped with fine of Rs. 5000/- and other two appellants (Ranjit Singh Munda & Daru Singh Munda) were slapped with fine of Rs. 1000/- and in default to undergo R.I. for three and one year respectively. 3. The defence version of the case was that due to enmity, they have been falsely implicated. 4. It transpires that during the course of investigation, on 31.8.1993, some blood stained soil was seized, vide Ext. 1 and 3. Inquest report was also prepared near the house of Rush Munda, vide Ext. 3/1. Postmortem was conducted on the dead body by P.W. 10 who also proved Ext. 5 postmortem report. 5. In support of prosecution case in all 10 witnesses were examined. P.W 1, Lakhi Ram Baraik, who is stated in the fardbeyan as an eye-witness of the occurrence, has been declared hostile. Though he had admitted the occurrence but he has declined to tell the names of the accused persons as he said that he does not know as to who has killed. P.W. 2, Ram Bariak, who is the man of the same village, was also declared hostile and he denied to have made any statement before the police. P.W. 3, Lagra Singh Munda, was also declared hostile as he denied to have made any statement before the police. P.W. 4 was tendered and in his cross-examination, he simply said that near the house of Lakhi Ram, P.W. 1, there are houses of many persons. P.W. 5 is the informant and P.W. 6 is one Jagmohan Hazam of village Baruhatu. P.W. 7 was also declared hostile. P.W. 4 was tendered and in his cross-examination, he simply said that near the house of Lakhi Ram, P.W. 1, there are houses of many persons. P.W. 5 is the informant and P.W. 6 is one Jagmohan Hazam of village Baruhatu. P.W. 7 was also declared hostile. P.W. 8 is the father of the deceased who had come on the P.O. after 5.00 p.m. when he has found his daughter-in-law weeping and he came to know the occurrence and the name of the accused persons from the informant. P.W. 9 is the I.O. of this case and P.W. 10 is the Doctor. 6. Thus on the point of occurrence there are only two witnesses whose evidences are there as eye-witnesses, they are P.W. 5. informant and P.W. 6 Jagmohan Hazam. One of the controversies that arises is as to whether Jagmohan Hazam is a reliable witness. The case of the defence is that he is a witness of other village and there was no occasion for his presence at the time of occurrence near P.O. the defence has argued that as the other witnesses of the case have been declared hostile, this witness was purposely set up as an eye-witness. The 'Prosecution says that he is an independent witness because there is no motive on his part to give a false evidence against the accused and the village to which he belongs is not far away from the P.O. Therefore, when his presence is also corroborated by the informant, then, according to the prosecution, there is no reason to disbelieve the evidence of this witness. Taking into note the circumstances that the occurrence had taken place in the village and the village of this witness is contiguous to P.O. In the face of this contesting argument, it has become incumbent upon us to examine the actual character of this witness. In the fardbeyan, which was recorded, according to the informant, at the P.S. The name of this witness as an eyewitness has been taken. In the fardbeyan his name appears as an eye-witness of the occurrence. In this context, as other witnesses have become hostile and in order to know actually what had happened case diary has been perused, not with a view to declaring him as competent witness, but for understanding the nature of investigation which can throw some light on this point. In the fardbeyan his name appears as an eye-witness of the occurrence. In this context, as other witnesses have become hostile and in order to know actually what had happened case diary has been perused, not with a view to declaring him as competent witness, but for understanding the nature of investigation which can throw some light on this point. In the case diary, the evidence of this witness was recorded on 31.8.1993 where he deposed as an eye-witness. The another name of the witness in the F.I.R. is Lakhi Ram Baraik whose statement was also recorded, who has not stated his name as a person present at the P.O. But Ram Baraik, who is also a witness but turned hostile has stated before the police that Jagmohan Hazam was there. One another hostile witness Haripado Singh Munda also stated the presence of this witness though this witness has turned hostile, but they had taken the name of this witness (Jagmohan Hazam) during investigation. This witness (PW. 6) in his examination, para 1 has said that at the earliest time he was coming from the field of Mangal Singh. In the cross-examination he said that he had gone to Buchadih in connection with his professional work to Haripado Singh son of Gour Singh. It was argued that since there are two villages and PW. 6, Jagmohan Hazam, is from Baruhatu and the P.O. is Buchadih, it was not at all probable that he should be there. The informant, PW. 5, in heir examination-in chief says that when she was tying her goat, she saw her husband coming from the side of the field. But in her examination-in-chief, she has not taken the name of this witness either seeing him coming along with her husband or to be present at the P.O. Though in her cross-examination, para 7, she has said that the occurrence was witnessed by Lakhi Ram Baraik and Jagdip, but it is not clear as to whether Jagdip is the same Jagmohan Hazam. But it appears that she is referring to that person. But it will remain doubtful in the absence of clarification as to whether this Jagdip is the same man (Jagmohan Hazam) or he is another man. As the informant herself is not taking the name of this witness in her examination-in-chief, the presence of this witness at the P.O. is not corroborated. But it will remain doubtful in the absence of clarification as to whether this Jagdip is the same man (Jagmohan Hazam) or he is another man. As the informant herself is not taking the name of this witness in her examination-in-chief, the presence of this witness at the P.O. is not corroborated. Therefore, in the absence of this corroboration by the informant herself, the presence of this witness at the P.O. at the time of occurrence becomes doubtful. Therefore, his evidence cannot be relied up, for the following reasons: He (Jagmohan Hazam) is a man of other village, though his name is there in the F.I.A., but his name is not stated as an eye-witness of the occurrence by the another eye-witness of the occurrence i.e. informant in her cross-examination-in-chief. 7. In the aforesaid circumstances, we have to consider carefully the evidence of only remaining eye-witness of the occurrence i.e. the informant. The evidence of the informant, whose husband has been killed and as she is an interested one, has to be taken with caution. Now a question is raised whether in the absence of any independent corroboration and if the evidence of P.W. 6 is not found dependable, then whether it will be safe to uphold the judgment of the trial court. The occurrence has taken place at 4.30-5.00 p.m. when the question of identification cannot be doubted. The occurrence has taken place in two parts-one the appellants of Cr. Appeal No. 123/95R had caught her husband from behind and dragged him near the house of Lakhi Ram Baraik where the appellants of other Cr. Appeal No. 141/95R assaulted her husband. This witness no doubt is an interested one but her testimony as an eye-witness of the occurrence is not shaken. 8. A controversy has arisen as to whether the fardbeyan was recorded at the P.S. or whether at P.O. in the village Buchadih. According to the informant, she went to P.S. where her statement was recorded and according to the 1.0. it was recorded at the same time but at the P.O. The defence obviously demands that this is a serious discrepancy which creates doubt regarding the whole prosecution case. According to the informant, she went to P.S. where her statement was recorded and according to the 1.0. it was recorded at the same time but at the P.O. The defence obviously demands that this is a serious discrepancy which creates doubt regarding the whole prosecution case. Learned counsel for the State says that this is a discrepancy not of serious nature because in the village when the witnesses are illiterate particularly this lady who is the informant being an Adhivasi can make such a statement and the learned trial court has rightly examined this aspect of the matter and has ignored this discrepancy. It appears on perusal of the fardbeyan that there is a Police Camp in the village. In that circumstance, if the rustic lady misconstrues that as police station, then reasonably it can be ignored and attributed to the ignorance and illiteracy of the informant. So we are of the view that this does not create a serious discrepancy so as to demolish the whole prosecution case. The I.O. found the dead-body at the P.O. As stated above, he stated that he seized blood stains from the P.O. and the Doctor found the following injuries : Bruise (1) 7 x 2 cm. on left chest front (2) 5 x 2 cm. on left front lateral side of neck Abrasion (1) 2 x 2 cm. on right shoulder front (2) 3 x 2 cm. on right knee front. Lacerated Wound (1) 3 x 2 cm. x bone deep on the chin left side with fracture of underline maudible bone. There was infiltration of blood & blood clots at the side of fracture. (2) 2 x 1 cm. x soft tissues on left upper lip. (3) 8 x 3 cm. x bone deep on the left side of forehead and adjoining left side of the face. The underlying bones were broken into pieces. Lacesatory brain matter was drained out. (4) 4 x 2 cm. x bone deep on the right perietal region with depressed and communicated fracture of underlying bone measuring 4 x 2 cm. area, there is laceration of brain matter underneath. Opinion (1) All the injuries are ante-mortem (2) Caused by hard and blunt substance (3) Death is due to head injury (4) Time since death 06 to 24 hrs from the time of the PM. examination. area, there is laceration of brain matter underneath. Opinion (1) All the injuries are ante-mortem (2) Caused by hard and blunt substance (3) Death is due to head injury (4) Time since death 06 to 24 hrs from the time of the PM. examination. In the opinion of the Doctor, all these injuries can be caused by hard and blunt weapon like back portion of the Pharsa. The time of death corroborates with the post-mortem report. 9. We now again revert to the evidence of PW. 5. As stated earlier, her evidence is in two parts-the first part is with regard to the taking away of her husband by Gurua Munda and Seo Shankar Munda and the second part is with regard to the assaulting of her husband by the other appellants of the other Cr. Appeal (Cr.A. No. 141/95R). The informant has said that the assault was given by the Pharsa portion i.e. the back portion of the Pharsa. This is corroborated by the post-mortem report. PW. 8, is the father of the deceased, and his evidence is relevant to the extent that he is not an eye-witness but he has arrived at the P.O. after the occurrence where he had seen his daughter-in-law weeping and she had told him the entire story including the names of the accused persons and the manner of the occurrence. This witness has also stated in his cross-examination that the daughter-in-law has gone to the PS. in the night and he has seen the dead-body of his son. So far the manner of assault is concerned, it is corroborated by the medical evidence and as the time of occurrence is such, the presence of this witness at the P.O. is not disbelieved even in the absence of independent corroboration, but is also proved by a corroborative evidence of PW. 8. Thus there is no reason to disbelieve this witness. 10. Now we take the appeal of first two appellants i. e. Cr.A. No. 123/1995R. The appellants of this appeal are of different village. This fact has come in the evidence as well as in the statements of the witnesses recorded under section 313 Cr.PC. These two appellants belonged to Dorahati village. It is alleged by the informant that they are the relations of the appellant, Chamar Singh Munda of Cr.A. No. 141/1995R and this Sheo Shankar Munda is the relation of her Nanad. This fact has come in the evidence as well as in the statements of the witnesses recorded under section 313 Cr.PC. These two appellants belonged to Dorahati village. It is alleged by the informant that they are the relations of the appellant, Chamar Singh Munda of Cr.A. No. 141/1995R and this Sheo Shankar Munda is the relation of her Nanad. Then it appears that a proposal was made for the marriage of one Pati, after she had be• come widow with one Shyam and that Shyam was the younger brother of See Shankar Munda. It appears that a suggestion was given that as they had refused the proposal, they have been falsely implicated. Here the question arises as to whether section 34 I.P.C. is applicable in the circumstances of the case. 11. Learned counsel appearing for the State, relying on a decision reported in AIR 2000 SC 2063 , has argued that the facts of that case were exactly similar to that of the instant case and in that case section 34 I.P.C. was made applicable and therefore, consequently in this case also this may be made applicable. In that case, the time of occurrence was 12.00 in the night and all the accused persons had hidden themselves behind a Buld and when the deceased had gone there, then one of the accused persons had come out, caught him from behind, taken him to the other accused and also directed to shoot. In the instant case, the occurrence had taken place before the evening and not in the night. If in the night some persons are assembled at the place where they were not expected, because the heap of buld is not the natural place for living then these circumstance itself speak as to why they had assembled there, that too at that hour of dead of night and a common intention will be inferred from the conduct itself. If in the night some persons are assembled at the place where they were not expected, because the heap of buld is not the natural place for living then these circumstance itself speak as to why they had assembled there, that too at that hour of dead of night and a common intention will be inferred from the conduct itself. In the instant case, as the occurrence had taken place at 5.00 p.m. in the evening and the distance where the assault was made and the place from where the deceased was allegedly caught from behind and taken to the P.O. is very small; then it does not appear to have any reason as to why the persons who were standing armed only at a very small distance should and could not have assaulted themselves, rather they would have asked these two appellants (appellants of Cr.A 123/95R) to catch hold of the deceased and bring him before them. In this case, there is no allegation that when the assault was being committed, they participated in that assault or even abetted it by saying 'kill him' or 'assault him' and that distinguishes the facts of this case from the facts of that case which has been relied upon by the learned counsel appearing for the State. The circumstances that emerge are that these two appellants (Cr.A. No. 123/95R) belonged to other village and the only role that they allegedly had played is that they had caught hold of the deceased from behind, for which there appears to have no reason because had they been inimical intention, they could have assaulted themselves the deceased. Therefore, it appears that their presence at the P.O. has been absolutely cooked up because of the grievance that the informant party had against the accused because of the fact that he happens to be the relation of one of the assailants, Chamar Singh Munda. Thus, there appears no previous story or previous meeting of mind. Consequently in our opinion, section 34 I.P.C. does not at all apply so far these two appellants (Cr.A. No. 123/95R) are concerned. 12. The next question that arises is that if one part of the occurrence is disbelieved, the other part of the occurrence should also be disbelieved. Thus, there appears no previous story or previous meeting of mind. Consequently in our opinion, section 34 I.P.C. does not at all apply so far these two appellants (Cr.A. No. 123/95R) are concerned. 12. The next question that arises is that if one part of the occurrence is disbelieved, the other part of the occurrence should also be disbelieved. We again revert to the argument that has been raised that it is a case in which the occurrence had taken place in village and the informant is a rustic and illiterate woman. So many facts may be fixed up together for the various reasons and the reasons are obvious as stated above. Since the second part of the occurrence is confirmed by the informant and it is also corroborated by the medical evidence, the second part of the occurrence cannot be disbelieved. Consequently, we allow the Cr. Appeal No. 123/1995R and set aside the conviction and sentence made against the appellants namely 1. Turu @ Gurua Munda and 2. Seo Shankar Munda, of Cr.A No. 123/1995R and acquit them and direct that both of them shall be set at liberty forthwith, if not wanted in any other case(s). As the appellant, Seo Shankar Munda, is on bail, he is discharged from the bail bonds. But so far the second set of appellants of Cr. Appeal No. 141/1995R are concerned, there is no merit in this appeal. Consequently, that appeal fails and is dismissed. As the Appellant no. 1, Chamar Singh Munda, of Cr. Appeal No. 141/95R is on bail, the court below shall take all steps to take him into custody to serve the remaining part of the sentence.