Judgment R.N.Prasad and B.N.P.Singh JJ. 1. Both the appeals arise out of the judgment and order dated 28.2.1994 passed by 2nd Additional Sessions Judge, Munger, in Sessions Trial No. 138 of 1980. They have been heard together and are being disposed of by this judgment. 2. Appellants in Cr. Appeal No. 103 of 1994 have been convicted for the offence under section 302/149 of the Indian Penal Code and sentenced to undergo imprisonment for life. Bankey Singh, Ramashray Singh, son of Deoki Singh, Suresh Singh, Ram Charitra Singh, Ram Subhag Singh and Ramautar Singh have further been convicted for the offence under section 147 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months and rest of the appellants have been convicted for the offence under section 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year. Appellant in Cr. Appeal No. 153 of 1994 has been convicted for the offence under section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. He has further been convicted for the offence under section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for two years. The sentences were ordered to run concurrently. 3. One Dhanik Singh son of Nemu Singh gave his fardbeyan on 25.11.1974 at about 8 A.M. at the police station Barahiya that in the preceding month of Baisakh he gave six mounds of milk costing Rs. 350/- to Ram Kishore Singh @ Bouku Singh on the occasion of thread ceremony of his nephew on credit. He used to demand the price of the milk but Ram Kishore Singh used to evade the payment of price of the milk. On the preceding Sunday at about 6 P.M. while Ram Kishore Singh was sitting at the door of Bishundeo Singh, he demanded price of the milk from him but he refused to pay and abused him. He returned back. On 25.11.1974 at about 6 A.M. when he, his father, his brother Nageshwar Singh, Bachi Singh, Bhagwan Singh, Balmiki Singh, Baban Singh and the neighbour Judgal Singh, Bilayati Singh and Ramnandan Singh were sitting in the Dalan all on a sudden 25 accused persons including the appellants variously armed with gun, pistol, arrow, Bhala and Lathi came there. On 25.11.1974 at about 6 A.M. when he, his father, his brother Nageshwar Singh, Bachi Singh, Bhagwan Singh, Balmiki Singh, Baban Singh and the neighbour Judgal Singh, Bilayati Singh and Ramnandan Singh were sitting in the Dalan all on a sudden 25 accused persons including the appellants variously armed with gun, pistol, arrow, Bhala and Lathi came there. Ram Kishore Singh started abusing and Kiter Singh ordered to assault on which Jai Prakash Singh fired his gun causing injury to his brother Nageshwar Singh. Ram Kishore Singh also fired causing injury to Nageshwar Singh. He fell down and died. Bilayati Singh, Jugal Singh, Markenday Singh and villagers Tolu Singh, Rajo Singh, Hanuman Singh, Narayan Singh and others intervened on which Arjun Singh fired causing injury to Bilayati Singh and Ram Sagar Singh fired causing injury to Tolu Singh. Ramashray Singh, Shyamdeo Singh and others pelted brickbats causing injury to his father, Nemu Singh, his brother, Bhagwan Singh, Bachi Singh, Balmiki Singh, Baban Singh and also villager Jugal Singh. Shyamdeo Singh shot arrow but it did not hit anybody. Ramashray Singh also exploded bomb but it also did not hit any body. The accused persons tried to take away the dead body. He and others pelted brickbats in defence and raised alarm then the accused persons fled away towards west. The injured were taken to hospital. He and his brothers Bachi Singh and Bhagwan Singh went to Barahiya police station and on his statement fardbeyan was recorded. 4. On the aforesaid fardbeyan formal first information report was drawn, investigation was taken up and on completion of investigation charge sheet was submitted against all the accused persons. The court took cognizance and committed the case to the court of Sessions for trial. Six persons, namely, Arjun Singh, Brijnandan Singh, Rajniti Singh, Ramnandan Singh Bishundeo Singh and Jagdish Singh were absconding. During the pendency of the trial four persons, namely, Ram Balak Singh, Ram Sagar Singh, Ram Kishore Singh and Kiter Singh died. 5. The trial court convicted the appellants as indicated above. However, during the pendency of the appeal, appellants, Ramanuj Singh, Bankey Singh and Ramautar Singh died and as such their appeal stood abated. 6. The defence of the appellants was denial of the occurrence as alleged by the prosecution and also that the deceased Nageshwar Singh had criminal antecedent. 5. The trial court convicted the appellants as indicated above. However, during the pendency of the appeal, appellants, Ramanuj Singh, Bankey Singh and Ramautar Singh died and as such their appeal stood abated. 6. The defence of the appellants was denial of the occurrence as alleged by the prosecution and also that the deceased Nageshwar Singh had criminal antecedent. He was murdered somewhere else while committing dacoity, his dead body was brought to the alleged place of occurrence and false injury report was obtained. No price of milk was due to Raj Kishore Singh and the appellants were falsely implicated in the case. At the relevant time Narayan Singh used to live at Calcutta in connection with work of his Union. 7. The prosecution in support of its case examined eight witnesses out of which P.W. 1 and P.W. 2 are injured eye witnesses, P.W. 3 is also an eye witness, P.W. 7 is informant and witness to the occurrence. P.W. 4 has been tendered. P.W. 5 is a doctor, who examined injured P.W. 2, P.W. 4, P.W. 7 and other injured persons. P.W. 6 is also a doctor, who held postmortem over the dead body of Nageshwar Singh. P.W. 8 is investigating officer. 8. The occurrence took place on 25.11.1974 at about 6 A.M. near the Dalan of the informant in which one Nageshwar Singh was killed and several persons including eye witnesses i.e. P.Ws. 1, 2, 3 and 7 sustained injury in the incident. Fardbeyan was recorded on the same day at about 8.00 A.M. i.e. after two hours and as such possibility of false implication of the persons is excluded. The eye witnesses i.e. P.Ws. 1, 2, 3 and 7 are brothers of the deceased, Nageshwar Singh. Learned counsel for the appellants pointed out that since they are related to the deceased, their evidence be discarded. In this regard it would not be out of place of mention herein that it is well established rule of law that evidence of such witnesses is not required to be thrown out on this ground alone rather requirement of law is that the evidence of such witnesses is required to be scrutinised with care and caution. Keeping in mind the well established rule of law, I proceed to examine the evidence of witnesses. 9. At the relevant time, the eye-witnesses were sitting in their Dalan along with others. Keeping in mind the well established rule of law, I proceed to examine the evidence of witnesses. 9. At the relevant time, the eye-witnesses were sitting in their Dalan along with others. They were gossiping among themselves. P.W. 7 is informant and brother of the deceased, Nageshwar Singh. His evidence is that at the relevant time he and several other persons including the eye witnesses were sitting in the Dalan and were gossiping. The appellants and others came variously armed with gun, pistol, Bhala, arrow, bomb and Lathi. Ram Kishore Singh alias Bauku Singh (dead) started abusing and Kiter Singh (dead) ordered to assault on which Prakash Singh and Bauku Singh fired causing injury to Nageshwar Singh. He fell down on the ground. His neighbour Bilayati Singh intervened. Arjun Singh fired causing injury to him. Ram Sagar Singh fired causing injury to Tolu Singh. Thereafter, all the accused persons including the appellants hurled brickbats causing injury to him, Balmiki Singh, Bhagwan Singh, Bachi Singh and Baban Singh. Ramashray Singh hurled bomb and thereafter all the accused persons including the appellants ran away. The injured persons were taken to hospital. He went to the police station and gave his fardbeyan before the Sub Inspector of Police and put his signature over the same. Bhagwan Singh and Bachi Singh had also gone to the police station and their statement was also recorded. Injured Bilayti Singh, Nemu Singh and Tolu Singh remained in the hospital and he and others went to the village. Police came at the place of occurrence. He inspected the place of occurrence and saw the dead body at the place of occurrence. He prepared inquest report. He found empty cartridges and one live cartridge. He seized the articles and prepared seizure list. In the preceding month there was thread ceremony of the son of Narayan Singh and on that occasion he supplied milk worth Rs. 350/-. The price of the milk was not paid and on demand he was evading the payment of price of the milk. A day prior to the occurrence he demanded the price of the milk on which he stated that he is a member of Jaipanthi group and he would see how he would realise the price of the milk. He returned silently and in the next morning the occurrence took place. A day prior to the occurrence he demanded the price of the milk on which he stated that he is a member of Jaipanthi group and he would see how he would realise the price of the milk. He returned silently and in the next morning the occurrence took place. The witnesses out of fear of the accused persons are not ready to depose. He admitted that he along with others including Nageshwar Singh was accused in a case of murder. He gave detailed description of the place of occurrence. He found holes on the body of the deceased, Nageshwar Singh. On receipt of gun shot injury his brother Nageshwar Singh, fell down on the ground. Blood had also oozed out from the injury. Investigating Officer seized the blood. The papers relating to bomb, empty cartridges and remnants of bomb were picked up by the investigating officer. 10. P.W. 1 at the relevant time was at his Dalan along with other persons and they were gossiping among themselves. The accused persons including the appellants came variously armed. Ram Kishore Singh @ Bouku Singh started abusing and Kiter Singh ordered to assault on which Bauku Singh and Prakash Singh fired causing injury to his brother, Nageshwar Singh. He fell down on the ground. The villagers came and intervened. Arjun Singh fired causing injury to Bilayti Singh, Ram Nandan Singh son of Bankey Singh and Sagar Singh fired causing injury to Tolu Singh, Gita Singh and Jugal Singh. Shyamdeo Singh shot arrow causing injury to his father, Nemu Singh, on the leg.The rest of the accused persons hurled brickbats causing injury to him and the witnesses. Thereafter, the accused persons hurled bomb and ran away. The reason for committing offence was sale of milk by his brother Dhanik Singh to Ram Kishore Singh and demand of price of milk from the aforesaid Ram Kishore Singh a day prior to the occurrence. He admitted that he was an accused in the case of murder of Matar Singh. His brother, Dhanik Singh, stated about the incident which had taken place a day before the occurrence. There was no enmity with the accused persons from before. He sustained injury caused by brickbats. He was present at the place of occurrence throughout. His father, Nemu Singh also sustained injury caused by arrow. His brother, P.W. 7, had sustained injury caused by brickbats. There was no enmity with the accused persons from before. He sustained injury caused by brickbats. He was present at the place of occurrence throughout. His father, Nemu Singh also sustained injury caused by arrow. His brother, P.W. 7, had sustained injury caused by brickbats. He also testified his evidence in examination-in-chief in cross examination about firing by Prakash Singh, Ram Kishore Singh and others and also throwing brickbats by the accused persons. The milk was supplied by his brother to Ram Kishore Singh on the thread ceremony of his nephew but on demand of the price of milk he was avoiding the payment of price. On the day of occurrence itself his statement was recorded by the police. He denied the suggestion that no occurrence took place as alleged by him. 11. P.W. 2 at the relevant time was at his bungalow along with other persons including the witnesses. They were gossiping among themselves. The accused persons including the appellants came variously armed at his Dalan. Ram Kishore Singh started abusing and Kiter Singh gave order to assault. His brother, Nageshwar Singh, protested on which Ram Kishore Singh and Jai Prakash Singh fired causing injury to his brother Nageshwar Singh, who fell down and died. The villagers came and intervened on which Arjun Singh fired causing injury to Bilayti Singh. Ram Nandan Singh son of Ram Gulam Singh, Ram Nandan Singh son of Bankey Singh and Ram Sagar Singh fired causing injury to Jugal Singh, Gita Singh and Tolu Singh. Shyam Deo Singh, Jagdish Singh and Bishundeo Singh shot arrow causing injury to his father and other members of the mob hurled brickbats causing injury to Bachi Singh, Dhanik Singh, Baban Singh and Bhagwan Singh. The members of the mob were trying to take away the dead body of Nageshwar Singh but they could not succeed. The accused persons were of Jai Panthi group. The reason of occurrence was demand of price of milk by Dhanik Singh from Ram Kishore Singh one day prior to the occurrence. The investigating officer had seen the injury on the person of the injured persons, who were taken to hospital for treatment. He gave description of the place of occurrence and stated that the house situated in the north of the bunglow had accused washed away in the river. He is cultivator and keeps buffaloes. The investigating officer had seen the injury on the person of the injured persons, who were taken to hospital for treatment. He gave description of the place of occurrence and stated that the house situated in the north of the bunglow had accused washed away in the river. He is cultivator and keeps buffaloes. In fact, the witness testified his evidence in examination in chief on all relevant material points in his cross-examination. 12. P.W. 3 was at the relevant time at his bungalow along with other persons including the witnesses. The accused persons including the appellants came variously armed. Ram Kishore Singh @ Bauku Singh started abusing. His brother, Nageshwar Singh, objected upon which Kiter Singh gave order to assault and Ram Kishore Singh and Prakash Singh fired causing injury to Nageshwar Singh, who fell down on the ground and died. Arjun Singh fired causing injury to Bilayti Singh. Shyamdeo Singh shot arrow causing injury on the leg of his father. Ram Nandan Singh son of Ram Gulam Singh shot arrow causing injury to Jugal Singh. Ram Nandan Singh son of Bankey Singh fired causing injury to Gita Singh. Sagar Singh shot arrow causing injury to Tolu Singh. The other accused persons hurled brickbats causing injury to him and other persons. The accused persons were trying to take away the dead body but due to intervention they ran away. He also supported the motive of the occurrence i.e. demand of price of milk by Dhanik Singh. He gave the description of the place of occurrence. He stated that blood had also oozed out from the injury. In cross examination the witness testified his evidence in examination in chief. The defence could not be able to elicit anything to doubt his evidence. 13. From the discussions of the evidence, as indicated above, it is evident that the oral evidence of the eye witnesses is consistent on all material points i.e. place of occurrence, manner of occurrence, use of weapon, time of occurrence etc. They were cross examined at length but nothing could be elicited to doubt their evidence. 14. P.W. 5 is a doctor, who examined the injured persons. His evidence is that on the day of occurrence i.e. 25.11.1974 he examined Bhagwan Singh, P.W. 2; Bachi Singh, P.W. 4; Dhanik Singh, P.W. 7; Nemu Singh, Tolu Singh and Gita Singh, not examined. They were cross examined at length but nothing could be elicited to doubt their evidence. 14. P.W. 5 is a doctor, who examined the injured persons. His evidence is that on the day of occurrence i.e. 25.11.1974 he examined Bhagwan Singh, P.W. 2; Bachi Singh, P.W. 4; Dhanik Singh, P.W. 7; Nemu Singh, Tolu Singh and Gita Singh, not examined. He found injuries on the person of Bhagwan Singh, P.W. 2; Bachi Singh, P.W. 4; Dhanik Singh, P.W. 7; and Nemu Singh not examined; caused by hard blunt substance. He opined that injuries were simple in nature and he also found injuries on the person of Tolu Singh and Gita Singh, not examined; caused by fire arm. 15. P.W. 6 is also a doctor, who held postmortem over the dead body of Nageshwar Singh on 26.11.1974 at about 10 A.M. He found three circular punctured wounds on the left axila with blackening of skin around the wound communicating with pleural cavity, three circular punctured wounds on the front of left chest. The margin of the wound was blackened and he also found two circular wounds on the left scapular region. On dissection he found 2nd, 3rd and 4th rib fractured. He also found blood in the left and right pleural cavity. One bullet was found in the right lung. He opined that death was due to shock and haemorrhage caused by injuries found on the person of the deceased specially injury no. 1. Time elapsed since death was 24 hours. 16. P.W. 8 is investigating officer. He has given a vivid picture of the place of occurrence and stated that place of occurrence is Sahan in front of the Dalan of the informant. He found dead body of Nageshwar Singh at a distance of 8 from the Dalan of the informant. He found blood stain on the tiles. Brickbats were lying at the spot. He found sign of throwing brickbats on the southern and western walls of the Dalan of the informant and also brickbats of the roof of the Baithka. The tiles of the roof were broken. He also found empty cartridges, one live cartridge at the place of occurrence. He seized articles and prepared seizure list. He did not send blood stain for chemical examination. The tiles of the roof were broken. He also found empty cartridges, one live cartridge at the place of occurrence. He seized articles and prepared seizure list. He did not send blood stain for chemical examination. He recorded the statement of Bhagwan Singh, P.W. 2, and Bachi Singh, P.W. 4 at the police station and also recorded the statement of Balmiki Singh, P.W. 3; Baban Singh, RW. 1; Nemu Singh, Jugal Singh, Ram Nandan Singh @ Markenday Singh, Gital Singh, Hanuman Singh, Tolu Singh, Raja Singh, Jai Prakash Singh and Dinesh Singh at the place of occurrence, however, he stated that P.W. 2 named only one person, who threw bomb. 17. From the discussion of the evidence of the doctor and the investigating officer it is evident that the evidence of the doctor has corroborated the prosecution case with regard to use of weapon i.e. fire arm and throwing brickbats and also time of occurrence. The evidence of the investigating officer also corroborates the prosecution case with respect to place of occurrence. The objective finding of the investigating officer also corroborates the prosecution case with respect of manner of occurrence and place of occurrence. Thus, on consideration it is evident that the evidence of the eye witnesses is corroborated by the other evidence such as evidence of the doctor and the investigating officer and as such their evidence cannot be discarded merely on the ground that they are relation of the deceased rather their presence at the place of occurrence is natural and their evidence is consistent to each other. 18. Learned counsel for the appellants, however, contended that conviction of the appellants under section 302/149 of the Indian Penal Code is bad in law as there is no allegation of assault on the deceased by them. In this regard it would not be out of place to mention herein that evidence of the eye witnesses is that all the accused persons including the appellants came together variously armed and on the order of Kiter Singh, Jai Prakash Singh and Ram Kishore Singh @ Bauku Singh fired causing injury to Nageshwar Singh and some of the accused persons fired causing injury to other persons. The rest of the appellants hurled brickbats causing injury to the witnesses and others and they ran away together. The evidence of the eye witnesses is consistent on all relevant points. The rest of the appellants hurled brickbats causing injury to the witnesses and others and they ran away together. The evidence of the eye witnesses is consistent on all relevant points. Thus, it is evident that they were members of the mob and participated in the occurrence having common object to commit the offence and as such they cannot escape the liability of section 302/149 of the Indian Penal Code. In the case of Bhajan Singh & Ors. V/s. State of U.P., AIR 1974 SC 1564 the Apex Court has held that there is no escape from the conclusion that all the accused persons came and worked with one design and object and they were definitely in the know of the fatal consequences that actually ensued as a result of conjoint attack to make them all vicariously responsible under section 149 of the Indian Penal Code. Thus, on consideration as discussed above, I find no substance in the submission of the learned counsel for the appellants. 19. Learned counsel for the appellants next contended that injuries found on the persons of P.Ws. 1, 2, 3 and 7 were simple in nature and such injuries can be concocted. The submission, in my view, has no substance at all as it has come on the record that occurrence took place on 25.11.1974 at 6 A.M. and the fardbeyan was recorded at 8 A.M. at the police station. The statement of two witnesses was recorded at the police station and the rest at the place of occurrence. The injured were taken to hospital soon after the occurrence. In such a situation, concoction as alleged by the defence, in my view is not possible. 20. Learned counsel for the appellants next contended that though in the evidence it has been stated that independent witnesses were present but none of them was examined in support of the prosecution case and as such the appellants deserve acquittal. In this regard it would be pertinent to mention here that prosecution case cannot be thrown out on this ground alone as it has come in evidence that the witnesses were not ready to depose in the case out of fear of the accused persons. In such a case the test is quality of evidence brought on the record and not quantity of evidence. In such a case the test is quality of evidence brought on the record and not quantity of evidence. Moreover, in the case of Appa Bhai and Another V/s. State of Gujrat, AIR 1988 S.C. 696 the apex court has held that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate but it is there everywhere whether village life, town or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. Therefore, instead of doubting the prosecution case for want of independent witnesses the court must consider the spectrum or the prosecution version and then search for the nugget of truth with due regard to probability if any suggested by the accused. In the instant case the oral evidence brought on the record is consistent to each other and has also been supported by the evidence of the doctors and the investigating officer. Thus, I find no substance in the submission of the learned counsel for the appellants. 21. Learned counsel for the appellants next contended that the occurrence is alleged to have taken place on 25.11.1974 but the first information report reached in the court on 28.11.1974, that is, after three days of the occurrence, which is evident from the endorsement on the first information report and as such there is every probability of concoction of the first information report. In this regard it would be pertinent to mention herein that merely on the aforesaid ground the case of the prosecution cannot be thrown out. The court has to consider the other aspect of the matter. After recording the fardbayan the investigating officer proceeded to the place of occurrence and started investigation. He inspected the place of occurrence, prepared inquest report, seized the articles found at the place of occurrence and recorded the statements of the witnesses. This indicates that investigating officer promptly came into action and started investigation of the case. After recording the fardbayan the investigating officer proceeded to the place of occurrence and started investigation. He inspected the place of occurrence, prepared inquest report, seized the articles found at the place of occurrence and recorded the statements of the witnesses. This indicates that investigating officer promptly came into action and started investigation of the case. In such a situation, it cannot be said that delay in receipt of the first information report in the court would be a ground to discard the evidence of the witnesses/prosecution case. Moreover, neither question was put to investigating officer with respect to such delay nor suggestion was given to the aforesaid effect. Therefore, I find no substance in the submission of the learned counsel for the appellants. 22. Thus, on consideration as discussed above, I find no merit in the appeals. Accordingly, both the appeals are dismissed. The bail bond of the appellants, who are on bail, is hereby cancelled. They are directed to surrender before the trial court to serve the remaining period of sentence.