JUDGMENT : A.K. Sinha, J. These appeals are being disposed of by this common JUDGMENT : as they arise out of the same JUDGMENT : and this common JUDGMENT : will govern all the four appeals. 2. The appellant, namely, Brahmdeo Yadav @ Bhonu Yadav (Cr. Appeal No. 371 of 1999) has been convicted under section 302 of the Indian Penal Code read with 27 of the Arms Act and has been sentenced to undergo rigorous imprisonment for life and rigorous imprisonment for two years respectively under both the counts. The rest of the appellants have been convicted under section 302/149 of the Indian Penal Code for which they have been sentenced to undergo rigorous imprisonment for life and they have further been convicted under section 324/ 149 of the Indian Penal Code for which they have been sentenced to undergo rigorous imprisonment for one year each. 3. As per the fardbayan of Naresh Yadav (P.W. 9), the informant of the case which was recorded at Govindpur Hospital on 28.4.1997 at 10.00 a.m., the prosecution story is that the informant alongwith his brother Suresh (deceased) was getting his diesel engine repaired by a Mechanic, namely, Mohan Yadav and while they were busy in the repair works, all the appellants came there being armed with gun and other lethal weapons and as soon as they came, accused Brahamdeo Yadav @ Bhonu Yadav fired upon the deceased, namely, Suresh Yadav with gun causing injury on his abdomen. The informant was also assaulted with Sait, as a result whereof he sustained injury on his lips. The informant raised alarm on which Munshi Yadav (P.W. 7), Ganauri Yadav (P.W. 3) and Bindeshwar Yadav (P.W. 4) came and they were also assaulted with Gandasa. Bhala etc. It is specifically alleged that Munshi Yadav was assaulted with Gandasa causing injury on his left hand, Ganauri Yadav was assaulted with Bhala and Bindeshwar Yadav was also assaulted with Bhala. The informant brought his brother to Govindpur Hospital for treatment but he died on the way. The occurrence took place at 9.00 a.m. The motive behind the occurrence is that there are two groups in the village and both the groups were inimical to each other on account of the contract work of the bridge of the village and due to that reason the alleged occurrence took place. 4. The occurrence took place at 9.00 a.m. The motive behind the occurrence is that there are two groups in the village and both the groups were inimical to each other on account of the contract work of the bridge of the village and due to that reason the alleged occurrence took place. 4. A case under sections 147, 148, 149, 323, 324, 307 and 302 of the Indian Penal Code was instituted on the basis of the fardbayan of the informant and after investigation the police submitted charge-sheet against the appellants under the aforesaid counts on the basis of which cognizance was taken and the case was transferred to the Court of Sessions. 5. The defence of the accused is the denial of the alleged occurrence. It is further the case of the defence that in the morning of 28.4.97 at 9.00 a.m. some altercation took place between Upendra Yadav, Ram Balak Yadav and Sunil Yadav and his aunt for carrying straw from the Khalihaan. In the meantime, ten persons from the prosecution side came at the door of the appellant Sunil Yadav being variously armed and started abusing accused Sunil Yadav which was protested and the prosecution side assaulted Musafir Yadav, Brahamdeo Yadav and in course of the quarrel Suresh Yadav was killed. A counter case being Govindpur P.S. Case No. 12/97 under sections 147. 148, 149, 323, 324, 307 and 447 of the Indian Penal Code was instituted on 29.4.87 on the fardbayan of accused Sunil Yadav in which eleven persons of prosecution side were made accused and the police submitted charge-sheet in that case which is still pending. 6. In support of the defence version, the defence has filed the F.I.R. of the counter case (Exhibit-B), charge-sheet filed by the police in that case (Exhibit-C), certified copy of the deposition of Sunil Yadav, the informant of the counter case (Exhibit. A) as also the certified copy of the deposition of Dr. Rajendra Kumar Bibhuti (ExhibitA/1), who examined the injuries of the injured of the counter case. 7. Accused Brahamdeo Yadav @ Bhonu Yadav was charged under section 302 of the Indian Penal Code read with 27 of the Arms Act, whereas, remaining ten appellants were charged under section 302/149 and 307/149 of the Indian Penal Code to which they pleaded not guilty. 8. 7. Accused Brahamdeo Yadav @ Bhonu Yadav was charged under section 302 of the Indian Penal Code read with 27 of the Arms Act, whereas, remaining ten appellants were charged under section 302/149 and 307/149 of the Indian Penal Code to which they pleaded not guilty. 8. In ORDER :to prove the respective charges the prosecution examined altogether ten witnesses in the case out of whom Dr. Bipul Kumar (P.W. 1) conducted autopsy on the dead body of the deceased and he has proved the postmortem report (Exhibit-1), P.W. 2 Dr. R.K. Bibhuti is the Doctor of Govindpur Primary Health Centre who had examined the injuries of other injured persons, namely, Naresh Yadav, Munshi Yadav, Ganauri Yadav and Bindeshwar Yadav and the respective injury reports of above named injured persons have been marked as Exhibit-2 to 2/4. P.W. 3 Ganauri Yadav, P.W. 4 Bindeshwar Pd. @ Manager Yadav, P.W. 7 Munshi Yadav and P.W. 9 Naresh Yadav are the injured eye-witnesses to the alleged occurrence and besides them P.W. 6 Kesho Yadav and P.W. 8 Minta Devi, who is the wife of the deceased also claimed to be the eye-witnesses to the alleged occurrence. 9. To begin with, I may refer the evidence of P.W. 9 Naresh Yadav, the informant of the case, who has supported the prosecution case and has deposed that on the alleged date of occurrence at 9.00 a.m. while he was getting the Diesel Machine repaired in Kita Parsot (name of the field) where Suresh, Ganauri, and Bindeshwar Yadav were also present, that all of a sudden eleven accused named in the F.I.R. came in a mob and surrounded them. He has further deposed that Brahamdeo Yadav, Sunil Yadav, Darogi Yadav, Maho Yadav were armed with gun, Bale Yadav, Kuldip Yadav, Shiv Nandan @ Shivan Yadav, Suraj Yadav were armed with Gandasa, Sunil Yadav s/o Musafir Yadav was armed with Saif, Sudhir Yadav was armed with Bhala and Paro Yadav was armed with a lathi. All of them surrounded the informant, his brother and other injured who started fleeing. He has stated that Brahamdeo Yadav fired upon Suresh Yadav by gun which caused injury on his abdomen and when he went to the rescue of his brother, accused Sunil Yadav assaulted him with Saif on his lip. All of them surrounded the informant, his brother and other injured who started fleeing. He has stated that Brahamdeo Yadav fired upon Suresh Yadav by gun which caused injury on his abdomen and when he went to the rescue of his brother, accused Sunil Yadav assaulted him with Saif on his lip. He further stated that Bale Yadav attacked Ganauri with Gandasa which he stopped with his right hand as a result whereof he sustained injuries on his palm. Kuldip Yadav assaulted Ganauri with Gandasa causing injury at his right hand, Shivnandan also assaulted Ganauri with Gandasa. P.W. 9 further stated that Suraj Yadav assaulted Ganauri with Gandasa and Sudhir Yadav assaulted Bindeshwar on his head and Kuldip assaulted Munshi with Gandasa, whereas, Paro Yadav assaulted Ganauri with lathi. RW. 9 has further stated that he was taking his brother to Govindpur Hospital but after some distance he died and on reaching to Govindpur Hospital, the S.I. of Police came and recorded his statement. RW. 9 further stated that the I.O. had seized the blood stained earth from the place of occurrence and had prepared the seizure list on which he affixed his L.T.I. 10. The statement of RW. 9 has been corroborated by other injured witnesses, namely, Ganauri Yadav (RW. 3), Bindeshwar Pd. @ Manager Yadav (P.W. 4) and Munshi Yadav (RW. 7), who have stated about the injuries inflicted upon them by the other accused with some variance, inasmuch as, RW. 3 has stated that Brahamdeo Yadav fired upon Suresh Yadav with rifle causing injury on his abdomen. Sunil Yadav and Darogi Yadav also fired from their respective gun but has not stated that any injury was caused to anyone on account of that firing. He further stated that Sunil assaulted Naresh with Saif, Sudhir Yadav assaulted him with Bhala causing injury on his left arm, Kuldeep assaulted him with Gandasa causing injury on the upper portion of his right palm, Bale Yadav assaulted on his right hand, Suraj and Shivan also assaulted him with Gandasa. He further stated that Bindeshwar was also assaulted with Gandasa, Munshi Yadav was assaulted with Saif and all the injured were treated at Govindpur Hospital. According to RW. 3, Suresh Yadav died at the spot. 11. Similarly, RW. 4 Bindeshwar Pd. @ Manager Yadav also gave account of the assault made by different accused. He further stated that Bindeshwar was also assaulted with Gandasa, Munshi Yadav was assaulted with Saif and all the injured were treated at Govindpur Hospital. According to RW. 3, Suresh Yadav died at the spot. 11. Similarly, RW. 4 Bindeshwar Pd. @ Manager Yadav also gave account of the assault made by different accused. According to him, Brahamdeo Yadav, who was armed with gun fired upon Suresh causing injury on his abdomen. Kuldeep assaulted Ganauri with Gandasa causing injury on his palm, Sunil Yadav assaulted Naresh Yadav with Saif and he was assaulted by Sunil Yadav with Saif on account of which he sustained injuries on his head. He further stated that Suraj Yadav assaulted Munshi Yadav with Gandasa. He has stated that Suresh Yadav died on way to Hospital. 12. The other injured, namely, Munshi Yadav has also supported the prosecution story and has deposed that all the eleven accused came at the place of occurrence being armed with Gun, Gandasa, Bhala, Saif and lathi and Brahamdeo Yadav fired upon Suresh Yadav causing injury on his abdomen and when Ganauri Yadav went to save him, accused Bale Yadav, Kuldeep Yadav, Sunil Yadav, Suraj Yadav, Shivan Yadav assaulted him with Gandasa and accused Sudhir assaulted Naresh with Saif causing injury on his lip and Bindeshwar was assaulted by Saif. P.W. 7 has stated that he was also assaulted by Sunil Yadav. According to him, Suresh Yadav died on way to hospital and all the injured received treatment at Govindpur Hospital. The evidence of the aforesaid eye-witnesses have been corroborated by the medical evidence of Dr. R. K. Bibhuti, who examined them at Primary Health Centre, Govindpur. P.W. 2 has deposed that on 28.4.97 at 9.55 a.m. he examined Naresh Yadav (P.W. 9) and found a lacerated wound over middle of the upper lip of size 1/2" x 1/10" x 1/10". The injury was simple in nature caused by hard and blunt substance. P.W. 2 examined Munshi Yadav (P.W. 7) on the same day at 10.10 a.m. and found an incised wound on his left upper arm of size 1-1/2" x 1/4" x 1/4" caused by sharp cutting weapon such as Gandasa but the injury was simple. The injury was simple in nature caused by hard and blunt substance. P.W. 2 examined Munshi Yadav (P.W. 7) on the same day at 10.10 a.m. and found an incised wound on his left upper arm of size 1-1/2" x 1/4" x 1/4" caused by sharp cutting weapon such as Gandasa but the injury was simple. On the same day he examined Ganauri Yadav (P.W. 3) at 10.30 a.m. and found three incised wound of different dimensions on third metacarpal joint, forearm and left upper arm besides a lacerated wound on the right side of his face. The incised injuries were caused by sharp weapon, whereas the lacerated injury was caused by hard and blunt substance. All the injuries were simple in nature except injury no. II which was caused over metacarpal joint of size 2-1/2" x 1/4" x Bone deep. 13. On the same day, P.W. 2 also examined Bindeshwar Yadav, (P.W. 4) and had found a lacerated wound on left side of head caused by hard and blunt object. The injury was simple in nature which could be caused by hard and blunt portion of Bhala. 14. P.W. 2 has admitted in his cross-examination that the injury found on the person of Munshi Yadav was superficial in nature, injury found on the person of Naresh Yadav and Bindeshwar Yadav can be caused by fall. Injury No. 1 of Ganauri Yadav can also be caused by fall and the rest injuries found on the person of Ganauri Yadav were not piercing injury and cannot be manufactured. 15. Besides the aforesaid injured eyewitnesses, the prosecution has examined P.W. 5 Basudeo Yadav, who is a seizure list witness and has deposed that the I.O. had seized blood stained earth in his presence on 28.4:92 at 12.30 p.m. from the field of Aziz Mian and had prepared the seizure list on which he signed as a witness and Naresh had also affixed his LTI on the seizure list. P.W. 5 has proved his signature (Exhibit-3/1). He has admitted in his cross-examination that he is an accused in the counter case and denied the defence suggestion that the seizure was not made in his presence. 16. P.W. 5 has proved his signature (Exhibit-3/1). He has admitted in his cross-examination that he is an accused in the counter case and denied the defence suggestion that the seizure was not made in his presence. 16. P.W 6 Kesho Yadav is the father of the deceased, who has deposed that all the eleven accused being armed with gun and other lethal weapons came at the place of occurrence and surrounded his son and other persons, so, he alongwith his son fled away in the field of Aziz Mian where the accused persons surrounded them and Brahamdeo Yadav fired upon Suresh Yadav causing injury on his abdomen due to which he fell down. He has also stated about the assault made upon the informant and other injured witnesses. 17. Other witness is P.W. 8 Minta Devi, who has also supported the alleged occurrence and has stated that it was Bhonu Yadav, who shot at her husband, who died on way to the hospital and other persons had also received injuries such as Ganauri Yadav and Naresh Yadav. She has stated that on halla many persons including her family members had assembled near the place of occurrence but she could not name them. She also stated that the injured persons-fell down at three places and she had noticed blood at all the three places. 18. P.W. 1 Dr. Bipul Kumar had conducted autopsy on the dead body of the deceased on 28.4.97 and had found the following ante mortem injuries on the person of the deceased: I.- An oval lacerated wound of 1/2" diameter with inverted and charred mar- , gin, half inch right to umbilicus of uncertain depth i.e. II. Multiple bruises of size 3" x 2" to 1" x1/2"four in number over back right lower chest and abdomen. On dissection.-Abdominal cavity filled with blood and blood clot, multiple perforations four in number of small intestine coecum and transverse colon, liver ruptured, a metallic foreign body like bullet of 1-1/2" length and 1/6" in diameter was lodged at the spine after piercing the abdominal aorta. Rest viscera were in tact and pale, stomach contained mucoid fluid about 100 ML. Cause of death was shock and haemorrhage due to the aforesaid injuries. 19. In cross-examination, P.W.1 has stated that he started post mortem at 5.40 p.m. and it was completed by 6.00 p.m. He also stated that he requested the 1.0. Rest viscera were in tact and pale, stomach contained mucoid fluid about 100 ML. Cause of death was shock and haemorrhage due to the aforesaid injuries. 19. In cross-examination, P.W.1 has stated that he started post mortem at 5.40 p.m. and it was completed by 6.00 p.m. He also stated that he requested the 1.0. to receive the bullet but he cannot say whether he received the same. 20. Learned counsel appearing for the appellants submitted that the oral account of injuries given by different witnesses varies with each other and is not supported by the medical evidence as deposed by P.W. 2. It was pointed out that P.W. 9 made statement to the effect that he was assaulted by Sunil Yadav with Saif causing injury on his lip and on account of such assault P.W. 9 should have sustained incised injury as Sail is a sharp edged weapon but P.W. 2 found injury on the lip of P.W. 9 which was caused by hard and blunt object Again, P.W. 9 stated that Shiv Nandan and Suraj had also assaulted Ganauri with Gandasa but P.W. 3 Ganauri Yadav stated that he was not assaulted by Suraj and Shivan. Similar such discrepancy occurring in the evidence of P.W. 3, P.W. 4, P.W. 6 and 7 were pointed- out to demonstrate that P.W. 3, P.W. 4, P.W. 6, P.W. 7 and 9 are not the real eye-witnesses to the alleged occurrence. 21. It is true that there are some variation and contradictions in the evidence of the eye-witnesses as pointed out by the learned counsel for the appellants. The question arises that whether the evidence of the injured eye-witnesses to the occurrence is fit to be rejected on the ground that some contradictions and discrepancies have been found while comparing their evidence inter se specially when those witnesses had not made statement before the Investigating Officer as to who assaulted whom with what weapon because in the instant case the attention of the injured eye-witnesses were invited to their previous statement which they made before the Investigating Officer under section 161 Cr. P. C. on the point of assault and all of them categorically stated that they had made statement before the I.O. as to who assaulted whom with what weapon and on which location but when the Investigating Officer was confronted to those statements which the injured eye-witnesses claimed to have made before the I.O., he stated that the witnesses had not made such statement before him. 22. In this regard, suffice it to say that untrue witnesses can possibly escape from making some discrepant details, perhaps, an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. It has been held by the Apex Court in the case of Rammi alias Rameshwar VS. State of M.P., 1999(8) SCC 649 that: "When an eye-witness is examined at length it is quite possible for him' to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps, an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But Courts should bear. in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny." 23. In another decision in the case of Leela Ram Vs. The State of Haryana, the Apex Court held that there are bound to be some discrepancies between the narration of different witnesses when they speak of details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidently, the corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eye-witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. 24. In view of the decisions as referred to above it may well be said that minor contradictions or variations as pointed out by the learned counsel in the evidence of the injured eye-witnesses will not cut any edge to disbelieve their evidence which looks otherwise trustworthy and natural in sum and substance. 24. In view of the decisions as referred to above it may well be said that minor contradictions or variations as pointed out by the learned counsel in the evidence of the injured eye-witnesses will not cut any edge to disbelieve their evidence which looks otherwise trustworthy and natural in sum and substance. The fact cannot be lost sight of that eleven persons variously armed attacked the prosecution side all of a sudden and the deceased as well as the injured eye-witnesses were surrounded by the appellants in the adjacent field and were assaulted by different accused with their respective weapons they were armed with. In such circumstances it was not possible for the eye-witnesses to enumerate the photographic picturisation of the attack. As such, the evidence of the eyewitnesses cannot be evaluated with mathematical niceties and it is for this reason that in a case of mob attack, the Court• does not pay much importance as to who attacked whom and with what weapon and in case some discrepancy or variation occur in the evidence of the witnesses the Court does not pay much importance to such variation or discrepancy. While evaluating the evidence of the witnesses, the approach of the Court is that whether the evidence of the witness read as a whole appears to have a ring of truth and whether it inspires confidence to believe the statement of a witness. 25. In the instant case, four eyewitnesses who were injured in the same transaction in which the alleged occurrence took place have consistently deposed about the circumstances under which they were assaulted and have stated that who assaulted them with which weapon. The inured eye-witnesses viz. P.Ws. 3, 4, 7 and 9 were examined by P.W. 2 within an hour of the alleged occurrence and the doctor found injuries on their person as referred to above, so, their evidence is corroborated by the medical evidence also. In the EI.A. which was recorded within an hour of the alleged occurrence the informant, though not in detail, has given the earliest version regarding the assault made upon him as also upon other injured witnesses. The informant P.W. 9 made positive statement to the effect that Brahmdeo fired upon the deceased with gun on account of which his brother died soon thereafter. The informant P.W. 9 made positive statement to the effect that Brahmdeo fired upon the deceased with gun on account of which his brother died soon thereafter. He has also stated about the injuries inflicted to him as also to P.Ws, 3, 4 and 7. Therefore, the general tenor of evidence of the injured eye-witnesses not only finds corroboration from the very fardbayan, rather, it is corroborated with the medical evidence as well. I have pointed out above that the fardbayan of the informant was recorded within an hour of the alleged occurrence and the injured eye-witnesses were also examined at about the same time by the Doctor (P.W. 2). So, this is very big circumstance which indicates that the evidence of the eye-witnesses on the point of assault is natural and trustworthy. Once the evidence of a witness looks trustworthy and inspires confidence to believe, minor discrepancies or contradictions occurring in the evidence of the witnesses cannot and does not affect their credibility. 26. So far the contradictions which the defence has tried to elicit by drawing the attention of the I.O. with regard to the statement of the eye-witnesses recorded by him, it is true that P.W. 10 Md. Shibli, who is the I.O. of this case has stated that the witnesses had not made those statements before him and the witnesses maintained to say that they had made those statement before the I.O. The question is that whether it will amount to contradiction or omission on the part of the I.O. to record the statement of the eye-witnesses. It would appear from the evidence of injured eye-witnesses that they had made statements on the point of assault before the I.O. but the I.O. (P.W. 10) has deposed that they had not made statement before him on the point of assault. In my view, the evidence of the witnesses as deposed by them looks more probable and trustworthy and there appears no reason that when they were assaulted by different accused in the manner stated by them in Court, why they will keep mum before the I.O. while making statement under section 161 Cr.P.C. before him. In all probability, they must have disclosed to the I.O. as to who assaulted them with which weapon and on which location but it seems that the I.O. did not record their statements properly. In all probability, they must have disclosed to the I.O. as to who assaulted them with which weapon and on which location but it seems that the I.O. did not record their statements properly. Under such circumstances it can only be the omission on the part of the I.O., who did not record the statement of the witnesses properly and thus stated in the Court that the witnesses had not made the statements on which his attention was invited. It is well settled rule of law that irregularity or illegality committed by the Investigating Officer during the course of investigation would not and does not cast doubt on the prosecution case nor trustworthy and reliable evidence can be cast aside so as to record acquittal ( AIR 1996 SC 3035 and 1999(9) SCC 525 relied on). 27. The learned A.P.P. cited decision in the case of Alamgir vs. State (NCT, Delhi), (2003)1 SCC 21 wherein the Apex Court held as hereunder: "The second limb pertains to the statement under section 161 Cr.P.C. Admittedly, this piece of evidence was not available in the statement of the witnesses under section 161 Cr.P.C., but does it take away the nature and character of the evidence in the event there is some omission on the part of the Police Official? Would that be taken recourse to as amounting to rejection of an otherwise creditworthy and acceptable evidence-the answer, in our view, cannot but be in negative." 28. Learned counsel appearing for the appellants vehemently argued that the prosecution had developed its story in course of trial, inasmuch, as the tardbayan discloses that all-the eleven accused formed unlawful assembly being armed with Sait, Bhala, Gun and .came on the field of the informant and accused Bhonu Yadav fired upon the deceased on his abdomen and the informant was also assaulted on his lip. The further story in the tardbayan is that Munshi Yadav was assaulted with Gandasa, Ganauri and Bindeshwar Yadav were assaulted with Bhala. There is nothing in the tardbayan that which accused was armed with what weapon except Bhonu Yadav but during the trial the informant as well as other witnesses have made categorical statement to the effect that which accused was armed with what weapon and who assaulted whom and on which location. There is nothing in the tardbayan that which accused was armed with what weapon except Bhonu Yadav but during the trial the informant as well as other witnesses have made categorical statement to the effect that which accused was armed with what weapon and who assaulted whom and on which location. It was, therefore, suggested that during the trial the prosecution had invented altogether a new story which has got no foundation in the fardbayan (Exhibit-4). In support of his contention, learned counsel has relied upon a decision in the case of State of Haryana vs. Jai Prakash and Ors., ( AIR 2000 SC 3569 ). In that case, the State had preferred appeal against the ORDER :of acquittal passed by the High Court and the appeal was dismissed on the ground that the State did not produce the copy of the evidence of the two relevant witnesses, namely, father and brother of the deceased for appreciation of their evidence. The Apex Court also found from the JUDGMENT : of the High Court that it did not suffer with any perversity or erroneous approach in the matter of the appreciation of evidence and thus no interference was required in the case• and accordingly the appeal was dismissed. I am, therefore, of the view that the decision cited by the learned counsel is not applicable in the facts and circumstances of the present case. 29. On the other hand, learned A.P.P. relied upon a decision in the case of am Prakash alias Raja vs. State of UUaranchal, (2003)1 SCC 648 . In the case before the Apex Court it was contended by the learned amicus curiae that the version given by P.W. 1 in her deposition is an improvement over the earliest version in the FIR, inasmuch as, "Raja why are you doing this? did not find mention in the FIR. Nor was it mentioned in the FIR that accused replied to PW. 1 saying "you have lodged complaint against me". It was, therefore, submitted that the remarks attributed to the husband of P.W. 1 and the accused cannot be true because they were not mentioned in the EI.R. The Apex Court held as hereunder:- "We find it difficult to accept this contention. It is axiomatic that the FIR need not contain an exhaustive account of the incident. It was, therefore, submitted that the remarks attributed to the husband of P.W. 1 and the accused cannot be true because they were not mentioned in the EI.R. The Apex Court held as hereunder:- "We find it difficult to accept this contention. It is axiomatic that the FIR need not contain an exhaustive account of the incident. It is to be noted that the report was given to the police within one-and-a-half hours after the incident. P.W. 8, a known person, had drafted the report that she dictated. She had given all essential and relevant details of the incident naming the accused as culprit. We cannot expect a person injured and overtaken by grief to give better particulars. The possibility of P.W. 1 inventing a story at that juncture trying to implicate the accused is absolutely ruled out. The contents of the FIR, broadly and in material particulars, conform to the version given by P.W. 1 in her deposition." 30. In the instant case also it is to be noted that the F.I.R. was lodged within an hour of the alleged occurrence and the informant had disclosed the essential and relevant details of the incident, inasmuch, as he had categorically stated that all the eleven accused being armed with Gun, Sait, Bhala came on his field and accused Bhonu Yadav fired upon his brother causing injury on his abdomen and he was assaulted with Saif and Munshi Yadav, Ganauri Yadav and Bindeshwcr Yadav were also assaulted by Bhala and Gandasa. As such, it would appear that the informant had disclosed the essential facts in respect of the occurrence in his fardbayan recorded within an hour of the alleged occurrence. It is true that P.W. 9 had not given details as to who was assaulted with which weapon and who assaulted whom with which weapon, but in course of trial the injured eye-witnesses made categorical statements as to who assaulted them with what weapon. P.W. 9 also stated in detail about the manner of assault to him as well as to other witnesses and their evidence is in conformity with the earliest version which he gave in his fardbayan and is certainly compatible with the same. Therefore, it cannot be said that the informant or the eye-witnesses introduced a new story in course of trial which has got no foundation in the fardbayan. 31. Therefore, it cannot be said that the informant or the eye-witnesses introduced a new story in course of trial which has got no foundation in the fardbayan. 31. A common argument was advanced by the learned counsel appearing for the appellants that as per the fardbayan the informant had gone to repair the Diesel Engine alongwith a Mechanic, namely, Mohan Yadav, who has not been examined by the prosecution, so, an adverse inference can be drawn against the prosecution version. Learned counsel made submission to the extent that• if Mohan Yadav would have been examined, he would have unfolded the true story which might have been different as compared to the prosecution version of this case. It was also submitted that all the witnesses examined by the prosecution are interested witnesses as they are related to each other and Mohan Mistri was the only independent witness who has not been examined. As such, it was submitted that the non-examination of a witness who was essential to be examined for unfolding the prosecution story is a serious infirmity on account of which adverse inference can be drawn (1971 Vol. II SCC 42 relied on). 32. It may be pointed out in this connection that in para 4 of his evidence the I.O. (P.W. 10) clearly stated that he had recorded the statement of Mohan Yadav and he had fully supported the prosecution' version. The defence did not put any question to the I.O. that what statements were actually made by Mohan Yadav. If the I.O. had recorded the statement of Mohan Yadav, the defence should have asked the I.O. as to what were the statements which he made before him to bring home his point that in case of his examination Mohan Yadav might have disclosed a different story as compared to the story disclosed by P.W. 9. On the other hand, the I.O. has categorically stated that Mohan Yadav had fully supported the prosecution story of the present case. In such view of the matter, the submission advanced by the learned counsel falls the ground. On the other hand, the I.O. has categorically stated that Mohan Yadav had fully supported the prosecution story of the present case. In such view of the matter, the submission advanced by the learned counsel falls the ground. It is true that Mohan Yadav was an independent witness who should have been examined by the prosecution but the learned trial Court has observed in para 29 of his JUDGMENT : that in course of trial the prosecution filed a petition on 13.4.2000, wherein, it was alleged that Mohan Yadav has gone in collusion of the defence and hence the prosecution does not want to examine him. The learned Court heard on the petition filed by the prosecution and allowed the prayer of the prosecution to give up Mohan Yadav. As such, it would appear that an explanation has been given for the non-examination of Mohan Yadav that under what circumstances the prosecution gave him up and did not examine him. So, no adverse inference can be drawn on account of non-examination of Mohan Yadav. Moreover, it has been observed by the Apex Court in the case. of Appabhai and Anr. Vs. State of Gujarat, AIR 1988 (SC) 696 which runs as follows:- "Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and 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 in village life, towns, or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused." 33. Relying upon the aforesaid decision of the Apex Court, I. may say that no adverse inference can be drawn on account of non-examination of Mohan Yadav, moreso, because he had been gained over by the defence for which the Prosecutor filed a petition •to give him up and the prayer of the prosecution was allowed after hearing. Relying upon the aforesaid decision of the Apex Court, I. may say that no adverse inference can be drawn on account of non-examination of Mohan Yadav, moreso, because he had been gained over by the defence for which the Prosecutor filed a petition •to give him up and the prayer of the prosecution was allowed after hearing. That apart, I am of the view that it is not obligatory on the part of the prosecution to examine all the witnesses cited in the charge-sheet. If in the discretion of the Prosecutor some of the witnesses do not like to give evidence or jumps into the side of the accused to favour him, the Prosecutor cannot take the risk of examining such unreliable witness. 34. It was next submitted that according to the fardbayan the prosecution case is that while the informant alongwith the deceased were repairing the machine in their field, all the appellants came variously armed and the appellant Bhonu Yadav @ Brahamdeo Yadav fired upon the deceased and other appellants assaulted the informant as well as P.Ws. 3, 4 and 7. So, according to the fardbayan, the" place of occurrence is the field of the informant It was also pointed out that P.Ws. 3 and 4 have clearly stated that the assault took place near the Boring Machine and blood had fallen at that place so much so, that P.W. 4 has stated that Suresh Yadav (deceased) fell down at a distance of one cubit towards north of the Diesel Engine, as a result of the gun shot injury and blood had fallen there. So, according to the fardbayan as also the evidence of P.Ws. 3 and 4, the place of occurrence is the field of the informant near the Diesel Engine but P.W. Md. Shibli (I.O.) has stated that the place of occurrence is the field of Aziz Mian which is situated at a distance of 50 yards from Boring Machine of the deceased. The I.O. has stated that the quarrel started near the Boring Machine due to which the deceased was shot in the field of Aziz Mian. The I.O. also seized copius blood from the field of Aziz Mian which according to him is the place of occurrence. He has stated that he seized the blood stained earth from the field of Aziz Mian in presence of the witnesses and prepared the seizure list (Exhibit-7). The I.O. also seized copius blood from the field of Aziz Mian which according to him is the place of occurrence. He has stated that he seized the blood stained earth from the field of Aziz Mian in presence of the witnesses and prepared the seizure list (Exhibit-7). 35. P.W. 5 Basudeo Yadav has also deposed that on 28.4.97 at 12.30 p.m. the I.O. had seized the blood stained earth in his presence from the field of Aziz Mian which is the place of occurrence and he proved his signature (Exhibit,3) on the seizure list. 36. P.W 9 Naresh Yadav (informant) has deposed that the appellants surrounded him and the deceased on which they started running but they were surrounded and Brahamdeo Yadav fired upon the deceased with his gun and in para 9 of his cross- examination he stated that Suresh ~as shot at in the field of Aziz Mian and other accused were also assaulted in the nearby field at 2-4 places. He has stated that Bindeshwar Prasad (P.W 4) was assaulted in the field of Para Yadav. Ganauri was assaulted near the deceased and Munshi Yadav was assaulted in the field of Maho Yadav. 37. P.W 6 Kesho Yadav, who is the father of the deceased has stated that the appellants surrounded them whereupon he alongwith his son started running but were• surrounded in the field of Aziz Mian where the appellant Brahamdeo Yaday fired upon the deceased causing injury on his abdomen and when Naresh (informant) went to his rescue he was assaulted by Sunil with Saito He has also stated about the assault upon P.Ws. 3, 4 & 7. 38. P.W 10 Md. Shibli is the I.O. of this case who has deposed that on getting information he went to Govindpur Hospital and recorded the fardbayan (Exhibit-4) of Naresh Yadav (P.W 9). He has proved the fardbayan (Exhibit-4) as also the formal F.I.R. (Exhibit-5). The 1.0. prepared the inquest report 11 presence of the witnesses and has proved the carbon copy of the inquest report (Exhibit-6). He further stated that he proceeded to the place of occurrence on the same day and according to him, the place of occurrence of this case is the field of Aziz Mian situated at a distance of 50 yards from the Boring Machine of the informant in the north. He further stated that he proceeded to the place of occurrence on the same day and according to him, the place of occurrence of this case is the field of Aziz Mian situated at a distance of 50 yards from the Boring Machine of the informant in the north. The I.O. has stated that the occurrence started near the Boring Machine and the deceased was killed in the field of Aziz Mian. He also seized the copius blood from the field of Aziz Mian and prepared the seizure list (Exhibit-7). He has stated that he recorded the statement of Mohan Yadav, who had fully supported the alleged occurrence. In cross-examination, the I.O. admitted that due to mistake he did not mention in the diary that whether Boring Machine was out of ORDER :and he also did not mention that at how many places he noticed blood. He has stated that he saw blood on the clothes of the injured persons but he did not seize their clothes. He did not mention in the diary as to whether there was any hole in the clothes of the deceased. The evidence of the I.O. clearly shows that the deceased was killed in the field of Aziz Mian but the occurrence started near the Boring Machine. It, however, appears from the evidence of the I.O. that he did not record certain important facts which he ought to have mentioned in the case diary which shows that he had not done the investigation properly. It would further appear that the I.O. did not properly record the statements of the injured witnesses which I have already discussed above. 39. On behalf of the prosecution, the statement of the witnesses recorded by the Magistrate under section 1-64 Cr.PC. have been filed but those statements have not been properly proved, inasmuch, as the Magistrate who recorded the statement has not been examined. As such, those statements cannot be looked into as evidence in this case. The attention of the witnesses drawn by the defence regarding the statement made under section 164 Cr.PC. can also not be looked into as evidence in absence of proper proof of those statements in the Court. 40. As such, those statements cannot be looked into as evidence in this case. The attention of the witnesses drawn by the defence regarding the statement made under section 164 Cr.PC. can also not be looked into as evidence in absence of proper proof of those statements in the Court. 40. Learned counsel appearing for the appellants submitted that the prosecution failed to establish the place of occurrence, inasmuch, as according to the fardbayan the place of occurrence is the Boring Machine fixed in the field of the informant, according to P.Ws. 3 and 4, the place of occurrence is near the Boring Machine a new story was invented in course of trial and PWs. 6, 7 & 9 shifted the place of occurrence to the field of Aziz Mian situated at a distance of 50 yards from the Boring Machine of the informant. So, this circumstance belies the prosecution case and the counter version looks more probable that the occurrence had taken place in front of the house of appellant Brahamdeo Yadav and it was actually the prosecution party, who opened assault on the appellants in course of which the deceased sustained gun shot injury at the hands of his own men. It was also contended that the certified copy of the deposition of Sunil Yadav in Sessions Trial No. 46/98 (Exhibit-A), F.I.R. and charge-sheet filed in the counter case (Exhibits-B & C) coupled with the evidence of Dr. R.K. Bibhuti (Exhibit-N1) would manifestly go to show that the accused of this case had also received injuries but the prosecution has suppressed that fact and the injury sustained by the accused of this case in the counter case has not been explained by the prosecution and this circumstance is sufficient to show 1hat the prosecution version is not correct. I may say in this connection that the certified copies of the depositions of Sunil Yadav and Dr. R.K. Bibhuti recorded in the counter case cannot be looked into as evidence in this case since they have not been examined in this case as witness on behalf of the defence. Moreover, Dr. RX Bibhuti was examined as P.W. 2 by the prosecution but he was not asked any question regarding the injuries said to have been sustained by the accused side. Moreover, Dr. RX Bibhuti was examined as P.W. 2 by the prosecution but he was not asked any question regarding the injuries said to have been sustained by the accused side. Besides that, it may be pointed out that the fardbayan of the present case was recorded within one hour of the alleged occurrence but the counter case was filed on 29.4.97 at 2.30 p.m. i.e. after twenty nine hours of the alleged occurrence. No explanation has been given for such abnormal delay in lodging the F.I.R. of the counter case. Moreover, merely because the prosecution failed to explain the alleged injuries on the accused persons, the same ipso facto cannot be taken to be a ground for discarding the prosecution case, especially when the same has been supported by the injured eye-witnesses and their evidence is corroborated by the medical evidence as also by the objective finding of the I.O. [2002 SCC (Cri) 1608 relied on]. 41. Learned counsel for the State contended that as a matter of fact the alleged occurrence started near Boring Machine where the appellants came armed with various weapons and seeing them the informant, deceased and other witnesses started running for their safety but they were surrounded and the actual assault took place in the adjacent filed of Aziz Mian which is situated at a distance of 50 yards only. It was also submitted that P.W. 5, P.W. 6 and P.W. 9 have made consistent statement to the effect that the place of occurrence is the field of Aziz Mian which is closely situated and the I.O. visited the 'place of occurrence within 2-1/2 hours of the alleged occurrence and found copius blood in the field of Aziz Mian. So far the evidence of P.Ws. 3 and 4 is concerned, it was submitted that out of some confusion they stated that the entire occurrence took place near Boring Machine. It was submitted that P.Ws. 3 and 4 are the rustic villagers and were examined after three years. So, it is possible that they made confusing statement about the exact place of occurrence because the occurrence started near the Boring Machine which ensued up to the field of Aziz Mian and that is why they stated that the place of occurrence is the field of the informant where Boring Machine was fixed. It was also submitted that merely on such confusing statement made by P.Ws. It was also submitted that merely on such confusing statement made by P.Ws. 3 and 4, the evidence of P.Ws. 5, 6, 9 and 10 (I.O.) cannot be disbelieved when the 1.0. has made positive statement to the effect that he seized copius blood in the field of Aziz Mian and it was told that the place of occurrence is there and this fact has been supported by P.Ws. 6 and 9 in their evidence. 42. Having considered the rival contentions of both the sides, I am also of the view that P.W. 3 and 4, who are rustic villagers and were examined after a lapse of about three years made statement out of some confusion that the entire occurrence took place near the Boring Machine. It looks more probable that the occurrence started near the Boring Machine and seeing the appellants the deceased as well as the witnesses must have tried to run away for their safety but they were surrounded in the adjacent field belonging to Aziz Mian where the appellant Bhonu @ Brahamdeo Yadav fired upon the deceased with his gun due to which he fell down and the other appeilants assaulted P.Ws. 3, 4, 7 and 9 in the field of Aziz Mian or in the nearby field. The evidence of the 1.0. clearly proves the fact that it was the field of Aziz Mian where the deceased was shot at and copius blood was found by the 1.0. which he seized. Therefore, I am of the view that the prosecution had proved the place of occurrence beyond all reasonable doubts and there is no force in the submission of the learned counsel appearing for the appellants that the place of occurrence is situated in front of the house of accused Brahamdeo Yadav as stated .in the F.I.R. of counter case. 43. Lastly, it was submitted that according to the prosecution version eleven person were variously armed with gun and other lethal weapons and if they would have any intention to commit the murder, they could have easily killed the witnesses. Therefore, from the facts and "circumstances of the case no common object of committing murder can be inferred. 44. 43. Lastly, it was submitted that according to the prosecution version eleven person were variously armed with gun and other lethal weapons and if they would have any intention to commit the murder, they could have easily killed the witnesses. Therefore, from the facts and "circumstances of the case no common object of committing murder can be inferred. 44. In reply to the aforesaid submission, the learned A.P.P. submitted that the facts and circumstances on record clearly go to show that all the eleven appellants came to the field of the informant being variously armed with the sole object of committing murder of the deceased which is evident from the fact that without any altercation or making any announcement they started assaulting and when the deceased as well as the witnesses ran for their safety in the field of Aziz Mian, all of them surrounded them and accused Brahamdeo Yadav @ Bhonu Yadav fired upon the deceased from a close range due to which the deceased fell down and after some time he died. It was further submitted that even if the 'other appellants only assaulted the informant and other witnesses and did not commit their murder, they cannot be absolved of their criminal liability of sharing the common object of committing the murder of the deceased. It was submitted that no overt act is necessary for holding the accused guilty under section 302 with the aid of Section 149 of the Indian Penal Code and mere presence of the accused is sufficient to hold them guilty. In support of his contention, learned counsel has relied upon a decision in the case of Yunis alias Kariya vs. State of M.P., (2003)1 SCC 425 wherein the Apex Court has held that "Even if no overt act is imputed to a particular person, when the charge is under section 149 I.P.C., the presence of the accused as part of an unlawful assembly is sufficient for conviction." 45. In another decision in the case of Ranbir Yadav vs. The State of Bihar, (1995)4 SCC 392 , the Apex Court held as hereunder: "It is not necessary that all the persons forming an unlawful assembly must do some overt act. In another decision in the case of Ranbir Yadav vs. The State of Bihar, (1995)4 SCC 392 , the Apex Court held as hereunder: "It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. The section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under section 149." 46. Relying upon the aforesaid decisions, I am of the view that in the facts and circumstances the appellants of Criminal Appeal Nos. 293 of 2000 (1. Sudhir Yadav, 2. Kuldip Yadav and 3. Paro Mahton), 307 of 2000 (1. Shiv Nandan Yadav @ Shivan Yadav) and 311 of 2000 (1. Darogi Mahto @ Darogi Yadav, 2. Maho Yadav, 3. Sunil Yadav @ Sunil Pd. Yadav s/o Bale Yadav, 4. Suraj Yadav, 5. Sunil Yadav s/o Musafir Yadav and 6. Bale Yadav) are squarely liable for committing offence under section 302 read with Section 149 of the Indian Penal Code. All the ten appellant are also liable for committing offences under sections 324/149 of the Indian Penal Code for having assaulted the informant and other witnesses in prosecution of their common object as referred to above. So far Brahamdeo Yadav is concerned, the evidence on record manifestly prove that it was he who fired upon the deceased on account of which he died. So, he is liable for committing offence under section 302 of the Indian Penal Code read with 27 of the Arms Act. 47. Regard being had to the evidence, facts and circumstances of the case, I am of the view that the prosecution had proved the respective charges against the appellants beyond all reasonable doubts and the learned trial Court was justified in convicting and sentencing the appellants in the manner as stated above. 48. 47. Regard being had to the evidence, facts and circumstances of the case, I am of the view that the prosecution had proved the respective charges against the appellants beyond all reasonable doubts and the learned trial Court was justified in convicting and sentencing the appellants in the manner as stated above. 48. I, therefore, do not find any infirmity in the ORDER :of conviction and sentence recorded by the trial Court which may require any interference. As such, the ORDER :of conviction and sentence recorded against the appellants by the trial Court are affirmed. 49. In the result, I do not find any merit in the aforesaid four appeals which stand dismissed. The appellants 1. Sudhir Yadav, 2. Kuldip Yadav, 3. paro Mahton (Cr.Appeal No. 293/2000), 4. Shiv Nandan Yadav @ Shival Yadav (Cr. Appeal No. 307/2000), 5. Darogi Mahto @ DarogiYadav, 6. Maho Yadav, 7. Sunil Yadav @ Sunil Pd. Yadav, 8. Suraj Yadav, 9. Sunil Yadav and 10. Bale Yadav (Cr. Appeal No. 311/2000) are on bail. Their bail bonds are hereby cancelled and they are directed to surrender before the Court below to serve out the sentences awarded to them by the trial Court. The appellant, namely, Brahmdeo Yadav @ Bhonu Yadav (Cr. Appeal No. 371/2000), who is in jail shall serve out the remaining part of the sentences.