P. C. AGARWAL, J. ( 1 ) ROOMALSINGH (A-5) was convicted under Sections 147, 302, 307, 324/149 of the Indian Penal Code (Code for short) while other appellants are convicted for offences under sections 148, 302, 307, 324/149 of the Code. They all have been sentenced to undergo R. I. for life, R. I. for 5 years and R. I. for 2 years under Sections 302, 307 and 324/149. They are further sentenced to R. I. for 2 years under Section 148 except Roomalsingh (A-5) who is sentenced to undergo R. I. for 2 years under Section 147 of the Code. ( 2 ) AS per prosecution Smt. Parvati (P. W. 5) is widow of deceased Ramsingh (deceased for short ). Toransingh (P. W. 2) and Maya (P. W. 4) are husband and wife. They had a son named Kailash who died during the pendency of trial. Their mother Mayabai also died during such trial. Toran (P. W. 2) is brother of Parvati (P. W. 5 ). Thus, major prosecution witnesses are closely related. They have constructed their Tapras on village pasture land. They had cultivated a part of such pasture and sown wheat and gram therein. On 24-10-1986 in noon, Rajalal (A-1) and Harnarayan (A-3) caught their cattle to take them to cattle pond on the allegation that these cattle had damaged their crop. However, decea-sed checked them and brought his cattle and tethered them near his tapra. Rajalal (A-1) and Harnarayan (A-3) did their cattle also in the newly sown field of deceased. Rajalal (A-1) sent Harnarayan (A-3) to call other appellants while he himself waited behind the Tapra of deceased. Soon Harnarayan (A-3) with other appell-ants i. e. , Bhai Sahib (A-2, Pehalwan Singh (A-4) and Roomalsingh (A-5) came to the spot. Rajalal (A-1), Bhai Sahib (A-2), Harnarayan (A-3), Pehalwan (A-4) were armed with Farsas while Roomalsingh (A-5) was having a Lathi. All five belabored the deceased in front of his Tapra. Toransingh (P. W. 2), his wife Maya (P. W. 4), son Kailash (since dead) and Parvati (P. W. 5), wife of deceased who came to the rescue of deceased were also badly beaten. Deceased died on the spot, while all others were badly injured. Birjo, daughter of Motilal (P. W. 1) called him. Motilal (P. W. 1) reached the spot and saw the decea-sed and injured witnesses. Deceased died on the spot, while all others were badly injured. Birjo, daughter of Motilal (P. W. 1) called him. Motilal (P. W. 1) reached the spot and saw the decea-sed and injured witnesses. He rushed to the Police Chowki Madhogarh and lodged F. I. R. (Ex. P/i) at 4. 30 P. M. Later, crime no. 73/86 was registered at P. S. Kachnar vide Ex. P/22. ( 3 ) AS per prosecution, Dr. Natwar Singh (P. W. 6) conducted autopsy of dead body of deceased and found 4 injuries on his head, two of which were lacerated wounds and other were contusions. He found 6 other contusions and one abrasion on different parts of body. He noted fracture of right frontal and parietal bone, left parietal bone, sixth rib with blood clotting over dura matter and left plural cavity with laceration in left lung with a punctured wound in midlobe. Cause of death was coma as a result of subdural haemorrhage i. e. , head injury. According to him, all these injuries were caused by hard and blunt object and were sufficient in the ordinary course of nature to cause his death. Such injuries could be caused by Lathi or blunt portion of a Farsa or even by sharp edged side of Farsa if the same was not sharp. He noted 5 contusions with 1 lacerated wound on left parietal occipetal region of Parvati (P. W. 5 ). He noted one incised wound on left leg. one lacerated wound on right parietal region, three contusions and one abrasion on body of Kailash son of Toran (P. W. 2 ). He noted in all 5 contusions, one lacerated wound, one abrasion on person of Maya (P. W. 4 ). According to him, all injuries were caused by Lathi or blunt portion of Farsa. Incised wound of Kailash S/o Toran could be caused by sharp edged side of Farsa also. Later Roomalsingh (A-5) and Pahalwan (A-4) were arrested on 26-10-1986. He noted two incised wounds, one on right arm, the other over right elbow, one lacerated wound and six contusions on different parts of body of Toran Singh (P. W. 2 ). Farsa was seized from Pehalwan Singh (A-4 ). A Lathi was seized from Roomalsingh (A-5 ). Later Roomalsingh (A-5) and Pahalwan (A-4) were arrested on 26-10-1986. He noted two incised wounds, one on right arm, the other over right elbow, one lacerated wound and six contusions on different parts of body of Toran Singh (P. W. 2 ). Farsa was seized from Pehalwan Singh (A-4 ). A Lathi was seized from Roomalsingh (A-5 ). Rajalal (A-1), Bhai Sahib (A-2) and Harnarayan (A-3) were arrested on 11-10-1986 and Farsas were seized from all three of them the same day and different seizure memos were prepared. Omprakash (P. W. 10), patwari visited the spot and prepared spot maps (Ex. (P/24 and P/25 ). After due investigation chargesheet under Sections 302, 307, 325, 147, 148, 149 and 450 of the Code was filed. ( 4 ) THE appellants pleaded not guilty. Rajalal (A-1) claimed that 10-12 cattle of the complainant party were damaging his Jwar crop. He was taking their cattle to cattle pond, Deceased. Toran (P. W. 2) Kailash (since dead), Mayabai (P. W. 4) and Parvati (P. W. 5) had sorrounded and checked him and threatened to kill him and snatched away the cattle. He claims that he has been falsely implicated. Other appellants too claim that they have been falsely implicated due to enmity. ( 5 ) TRIAL Court relied upon pro-secution evidence and convicted and sentenced all of the appellants as aforesaid. ( 6 ) THE appellants have challen-ged their conviction. According to them. injuries on person of deceased, Toran (P. W. 2), Maya (P. W. 4 ). Parvati (P. W. 5) and Kailash (since dead) do not commensurate with the theory of four appellants being armed with Farsas and using them. Pehalwan (A-4) and Roomalsingh (A-5) had come only later and thus an unlawful assembly of five persons was not proved and the appellants could not be convicted with the aid of Section 149 of the Code. ( 7 ) ON the other hand learned Addi. Govt. Advocate has argued that the judgment of the trial Court has been well reasoned and based on evidence on record. According to him, the appellants have not taken a defence of exercise of right of private defence. Conflict in ocular evidence and medical evidence was not such as to discard the ocular evidence. Opinion evidence of doctor is not last word. Common object was well proved. According to him, the appellants have not taken a defence of exercise of right of private defence. Conflict in ocular evidence and medical evidence was not such as to discard the ocular evidence. Opinion evidence of doctor is not last word. Common object was well proved. ( 8 ) WE have gone through the evidence on record and judgment recorded by the trial court with the assistance of the Advocates of both the parties and have heard both of them in length. ( 9 ) HOMICIDAL death of deceased is well proved by statements of Toran (P. W. 2), Maya (P. W. 4), and Parvati (P. W. 5) who are near relatives of deceased. Inquest memo (Ex. P/3) prepared by Raja Singh Parihar (P. W. 9) after giving notice Ex. P/2 to Panch witnesses supports this theory. Dr. Natwar Singh (P. W. 6) has conducted autopsy on the dead body and has noted as many as 11 injuries on his person with fractures of right frontal and parietal bone, left parietal bone, 6th rib with internal hae-morrhage over below dura matter. According to him, death was due to coma as a result of (sub-dural haemorrhage) head injury. Such injuries were sufficient in ordinary course of nature to cause death of deceased. His death was homicidal. Appellants have merely denied the allegation. Their denial is evasive and does not rebut the prosecution case. Thus, homicidal death due to external and internal injuries on the person of deceased is well proved. ( 10 ) THE trial court has relied upon statements of Toran (P. W. 2), his wife Maya (P. W. 4) and Parvati (P. W. 5) who is widow of the deceased. Toran (P. W. 2) is brother of Parvati (P. W. 5 ). These three are injured in the same occurrence. They have their Tapras in the vicinity. They were naturally present on spot. Rajalal (A-1) has admitted their presence on spot. Being injured and natural witnesses, their statements are of great value. Majju v. State of M. P. . Ramji v. State of Bihar. Ramanbhai Narayanbhai Patel v. State of Gujarat. Jinnat Miya v. State of Assam. Nachattar Singh v. State of Punjab. There has been no reason why they should spare the real assailants and implicate these appellants falsely. Being injured and natural witnesses, their statements are of great value. Majju v. State of M. P. . Ramji v. State of Bihar. Ramanbhai Narayanbhai Patel v. State of Gujarat. Jinnat Miya v. State of Assam. Nachattar Singh v. State of Punjab. There has been no reason why they should spare the real assailants and implicate these appellants falsely. No witness could be disbelieved merely on the ground that he was either related to the deceased or is an interested witness. Hukum Singh v. Rajasthan. Dalip Singh v. State of Punjab and Sarvan Singh v. State of Punjab. There has been no previous enmity between the parties. Dispute had arisen all of a sudden when Rajalal (A-1) and Harnarayan (A-3) had taken away the cattle which according to them had caused damage to their Jwar crop. Statement of these witnesses have been consistent, trustworthy and reliable. Even if there is any minor discrepancy or inconsistency, the same does not touch the hardcore of the prosecution case. State of H. P. v. Lekhraj. Leela Ram v. State of Haryana, Munshi Prasad v. State of Bihar. Sukhdev Yadav v. State of Bihar. ( 11 ) PROSECUTION version is supported by prompt F. I. R. (Ex. P/1) lodged by Motilal (P. W. 1) at Police Chowki Madhogarh within 2. 5 hours of the occurrence. This police chowki is situate at a distance of 6 kms. from the spot. Of course, Birjo might have taken same time to reach Motilal (P. W. 1) who immediately went to the spot, saw the deceased and injured persons there and rushed to Police Chowki. From any standard this F. I. R. is promptly made. It is not a result of any consultation or deli-beration. The same is spontaneous and has taken the case of prosecution very far. ( 12 ) OTHER material witnesses Kailash died during pendency of trial, mother of Toran (P. W. 2), Maya Bai also died during trial. Thus, their non-production is immaterial. Ofcourse Birjo, daughter of Motilal (P. W. 1) is not examined. However, the learned Court below has held it immaterial. We agree with him. There is no reason to suppose that had she been examined she should have supported the prosecution. Anyhow, the Court below in statement of Raja Singh Parihar (P. W. 9) had got proved the whole of the statement of Kailash (since dead ). However, the learned Court below has held it immaterial. We agree with him. There is no reason to suppose that had she been examined she should have supported the prosecution. Anyhow, the Court below in statement of Raja Singh Parihar (P. W. 9) had got proved the whole of the statement of Kailash (since dead ). However, the same could not be read as a dying declaration. There had been no evidence that such Kailash had died due to injuries caused in this incident. There was no such-charge either. The question as to how death of Kailash was caused was not in issue. Hence, necessary requisites of Section 32 (1) of the Evidence Act to bring such statement within the definition of dying declaration were absent. Wisely, the Court below has not relied upon this statement as dying declaration of Kailash and has not banked upon it for conviction of the appellants. Obviously, the same should be kept out of consideration. However, leaving aside the same, there is sufficient evidence against the appellant on record to base their conviction. ( 13 ) OFCOURSE, Dr. Natwar Singh (P. W. 6) has conducted autopsy on dead body of deceased on 25-10-1986 and has noted lacerated wounds on his person with contusions and abrasions. He has noted fractures of right frontal parietal bone and left parietal bone and sixth rib with blood clots in dura matter. He has noted injuries on persons of Parvati (P. W. 5), Kailash Sb Toran (since dead), Maya (P. W. 4) and Toran (P. W. 2 ). He had opined that such injuries could be caused with hard and blunt object. He in Para 9 has admitted that such injuries could be caused by Lathi, blunt part of Farsa and sharp part of Farsa if the edges are blunt. Toran (P. W. 2) in Paragraphs 36 and 37 has admitted that only Rajalal (A-1) and Bhai Sahib (A-2) did not use the Farsa from sharp edged side. Other two had used the blunt part of the same. Maya (P. W. 4) in Para 23 is not sure whether the sharp side or the blunt side of Farsa was used. Parvati (P. W. 5) in Para 5 has not defined whether sharp side or the blunt part of Farsa was used. ( 14 ) THE learned Sr. Other two had used the blunt part of the same. Maya (P. W. 4) in Para 23 is not sure whether the sharp side or the blunt side of Farsa was used. Parvati (P. W. 5) in Para 5 has not defined whether sharp side or the blunt part of Farsa was used. ( 14 ) THE learned Sr. Advocate for the appellants has drawn our atten-tion to Balaka Singh v. State of Punjab. Sarvan Singh v. State of Punjab (supra), Ramnath v. State of Punjab in which Mohinder Singh v. State was relied upon and has pressed the contention that in view of discrepancies between the ocular evidence and the medical evidence which does not commensurate with the prosecution story of causing injuries by four appellants by means of Farsas, sharp edged weapons, the whole case of the prosecution should have been discarded. He has argued on basis of Gora Singh v. State of Punjab, that when accused are alleged to be armed with sharp edged weapons like Gandasa and Gope and eye-witnesses ommitted to state which part of weapon was used presumption is that sharp edged portion of weapon was used instead of its blunt side. However, such is not a case here. Here eye-witnesses have claimed that the appellants have used blunt portion of their Farsa also. It is also argued on basis of Purushottam v. State of M. P. , that in case of inconsistency between the statement of eye-witnesses and the medical evidence, evidence of medical expert is to be preferred. However, it is to be remembered that evidence of doctor has to be appreciated like evidence of any other witness and there is no irrebutable presumption that a doctor is always a witness of truth. Mayur Panabhai Shah v. State of Gujarat. Anyhow, medical evidence is mainly opinion evidence. Its value is only corroborative. It proves that injuries could have been caused in the manner alleged and nothing more. The defence can use the same to discredit the eye-witnesses. However, unless medical evidence in its portion goes so far that it completely looses out all possibilities whatsoever of injuries taking place in the manner alleged by the eye-witnesses, the testimony of eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence. Chimanbhai Ukabhai v. State of Gujarat. However, unless medical evidence in its portion goes so far that it completely looses out all possibilities whatsoever of injuries taking place in the manner alleged by the eye-witnesses, the testimony of eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence. Chimanbhai Ukabhai v. State of Gujarat. Ofcourse, if direct evidence is satis-factory and reliable the same cannot be rejected on the basis of opinion evidence of medical expert. Punjab v. State of Haryana and Karnail Singh v. State of Haryana. ( 15 ) ANY evidence of medical expert is not binding on Court. Court has to form its own opinion. State of Haryana v. Bhagirath. ( 16 ) APEX Court in Mohansingh v. State of M. P. , has pronounced11. The question is how to test the veracity of the prosecution story especially when it is with some variance with the medical evidence. Mere variance of the prosecution story with the medi-cal evidence, in all cases, should not lead to the conclusion, inevitably to reject the prose-cution story. Efforts should be made to find the truth, this is the very object for which courts are created. To search it out, the Courts have been removing the chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long as chaff, cloud and dust remain, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the court, within permissible limit, to find out the truth. It means on one hand, no innocent man should be punished but on the other hand, to see no person committing an offence should get scot-free. If in spite of such effort, suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused. For this, one has to comprehend the totality of the facts and circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of eye witnesses including the medical evidence of course, after excluding those parts of the evidence which are vague and uncertain. For this, one has to comprehend the totality of the facts and circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of eye witnesses including the medical evidence of course, after excluding those parts of the evidence which are vague and uncertain. There is no mathematical formunla through which the truthfulness of a prosecution or a defence case could be concretised. It would depend on the evidence of each case including the manner of deposition and its clarity, corroboration of witnesses and overall, the conscience of a judge evoked by the evidence on record. So courts have to proceed further and make genuine efforts within the judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt. ( 17 ) IN the present case, presence of Toransingh (PW 2), his wife Smt. Maya (PW 4) and widow of deceased Parvati (PW 5) can not be doubted. All three had substantial injuries on their persons sustained in same event. They are named in f. I. R. Their presence on spot is assured. Their statements had been natural consistent and trustworthy and the same cannot be discarded due to any supposed conflict. As it is, on 26-10- 1986, a Lathi is seized from Roomalsingh (A-5) vide Ex. P/7, a Farsa from Pehalwan (A-4) vide Ex. P/8, on discovery made by them by Ex. P/26 and Ex. P/27. On 10-11-1986, Farsas were seized from Rajalal (A-1), Bhai Sahib (A-2) and Harnarayan (A-3) vide seizure memos Ex. P/4, P/9 and P110 on discovery made by them vide Ex. P/19, P/20 and P/21. The Court below has recorded such evidence. We do not find any reason to disagree with him. Anyhow, such weapons are of common user and are possessed by almost all the villagers. No human blood or blood marks of blood group of deceased are noted upon these weapons. Thus, we do not attach much value to these recoveries. Any how, such discovery or recoveries do not detract from the value of the prosecution evidence. ( 18 ) DURING cross-examination of Toran (P. W. 2) and Maya (P. W. 4), an attempt was made to allege that Rajalal (A-1) and Harnarayan (A-3) had certain injuries on their persons. However, there has been no medical report in support thereof. Any how, such discovery or recoveries do not detract from the value of the prosecution evidence. ( 18 ) DURING cross-examination of Toran (P. W. 2) and Maya (P. W. 4), an attempt was made to allege that Rajalal (A-1) and Harnarayan (A-3) had certain injuries on their persons. However, there has been no medical report in support thereof. No counter F. I. R. is lodged by the defence. There has been no cross-case. Even in their statement recorded under Section 313 of the Code of Criminal Procedure, such defence is not taken. Thus, this suggestion has no basis. ( 19 ) IT is true that Tapras of the complainant party were situate on Govt. pasture land. They were cultivating on Govt. pasture land. They were cultivating on Govt. land perhaps unauthorisedly. However, this act does not give any right to the appellants. None of the witnesses has admitted that cattle of deceased had grazed or damaged the Jwar crop of Rajalal (A-1 ). Even if it is assumed for the sake of argument that they had done damage such crop and this justified Rajalal (A-1) and Harnarayan (A-3) in taking their cattle, the same does not justify the act of the appellants. As the prosecution story is, the complainant party had already taken away their cattle and tethered them. As Rajalal (A-1) had stayed behind the Tapra of deceased and sent Harnarayan (A-3) to bring his brothers. Other appellants had come with Harnarayan (A-3) armed with various weapons and have attacked the deceased and his relatives. In these facts appellants had no right of private defence or property. Once deceased and his companions had snatched away the cattle and tethered them Rajendra (A-1) and his companions could only move the public authorities for compensating their loss and not to take the law in their own hands and attack fatally the deceased and his relatives. ( 20 ) LEARNED Senior Advocate has drawn our attention to Paras 17 and 18 of statement of Parvati (P. W. 5) and has argued that Pehalwansingh (A-4) and Roomalsingh (A-5) had come late when deceased has already received the fatal blow and prosecution witnesses were injured. Such stray admissions are not in accord with her own statement and other prosecution evidence. However, in Para 3 she had claimed that Harnarayan (A-3) had brought Roomalsingh (A-5), Pehalwan Singh (A-4) and Bhai Sahib (A-2) with him. Such stray admissions are not in accord with her own statement and other prosecution evidence. However, in Para 3 she had claimed that Harnarayan (A-3) had brought Roomalsingh (A-5), Pehalwan Singh (A-4) and Bhai Sahib (A-2) with him. In Para 4 she has claimed that all of the appellants had belabored deceased and other injured. That has been the consistent story of Toran Singh (P. W. 2) and his wife Maya (P. W. 4) also. Learned trial Court has clearly held that Pehalwan Singh (A-4) and Roomal Singh (A-5 had come with Harnarayan (A-3 ). Thus, argu-ment based on Musa Khan v. State of Maharashtra, is not well founded. It is not a case where these two accused had joined the unlawful assembly at a later stage when offence had already been committed. In wake of these facts, it cannot also be held that assembly of five persons was not established or the appellants could not have been convicted for murder and other offence with the aid of Section i49 of the Code. ( 21 ) OFCOURSE, prosecution has to prove criminality of the accused. K. Krishna Reddy v. State of Deputy Superintendent of Police, Hyderabad, yet, in the present case, criminality has been proved beyond reasonable doubt. ( 22 ) IN these facts and circums-tances of the case, the learned Court below has not erred in convicting the appellants under Sections 302/149, 324/149 and Rajalal (A-1), Bhai Sahib (A-2), Harnarayan (A-3), Pehalwan Singh (A-4) under Section i48 of the Code and Roomal Singh (A-5) under Section i47 of the said Code. However, the Court below in Para i6 had acquitted all the appellants under Section 307 of the Code yet by mistake he has recorded their conviction under Section 307 also which is clearly an error and has to be corrected and appellants have to be acquitted under Sections. 307/149 of the Code. However, sentences awarded for other offences are just and proper and they are maintained as they are. ( 23 ) APPEAL allowed in part. Convictions of appellants under Section 307 of the Code are set aside with the sentences awarded for the same offences. Rest of the convictions and sentences are affirmed as they are. Appeal disposed of. .