Judgment P.N.Yadav, J. 1. Criminal Appeal No. 540 of 1987 preferred by Sadhu Singh and Suhawan Singh alias Sohawan Singh, Criminal Appeal No. 577 of 1987 brought by Raj Ballam Singh and Criminal Appeal No. 582 of 1987 filed by Ramashish Singh and Muneshwar Singh arose out of one and the same judgment and order of conviction and sentence dated 26.9.1987 recorded by Sri Om Prakash Sinha, 2nd Additional Sessions Judge, Nalanda at Biharshariff in Sessions Trial No. 273 of 1985/138 of 1987 and hence they were heard together and are going to be disposed of by this common judgment. 2. There was a grocery shop owned and possessed by the informant Surendra Singh (P.W. 9) and his father Raj Kumar Singh (deceased) at village Mokarrampur under the jurisdiction of Noorsarai (Nalanda) police station of Nalanda district. The shop was situated in their own house. Both the informant and his father were at about 11.00 a.m. on 13.10.1984 sitting in their shop referred to above. The deceased was dealing with the customers. Just when appellant Sohawan Singh went to the shop and asked the deceased for certain goods and articles on credit. Refusal of the deceased Raj Kumar Singh to make sale on credit caused annoyance and anger to the appellant Sohawan Singh who abused him and went away threatening him with dire consequences. After a short while all the appellants including Sohawan Singh having armed themselves with various lethal weapons such as garassa, Saif and Lathi again went to the shop where in pursuance of order and instigation made by appellant Sohawan Singh, appellant Ramashish Singh inflicted a garassa blow on the head of the deceased and appellant Muneshwar Singh dealt a saif blow on his left palm while other appellants assaulted him with lathi as a result of which he sustained injuries and succumbed to the injuries so inflicted on him instantaneously on the spot. The informant raised alarm attracting several persons such as Musafir Singh (P.W. 7), Sitaram Singh (P.W. 8), Lakhan Singh (P.W. 3) and Birendra Singh (P.W. 4) who on their arrival witnessed the incident leading to the death of deceased Raj Kumar Singh. 3. The informant raised alarm attracting several persons such as Musafir Singh (P.W. 7), Sitaram Singh (P.W. 8), Lakhan Singh (P.W. 3) and Birendra Singh (P.W. 4) who on their arrival witnessed the incident leading to the death of deceased Raj Kumar Singh. 3. The informant along with P.W. 3 Lakhan Singh, P.W. 4 Birendra Singh, P.W. 5 Mahendra Singh, P.W. 7 Musafir Singh and P.W. 8 Sitaram Singh and others carried the dead body of the deceased to Nalanda police station where Chandradeo Sharma, A.S.I. (P.W. 11) at about 2.0 p.m. on 13.10.1984 recorded the Fardbeyan of P.W. 9 Surendra Singh on the basis of which Noorsarai P.S. Case No. 115/84 was registered under section 302 besides some other sections of the Indian Penal Code. P.W. 11 soon swung into action, started investigation and proceeded for village Mokarrampur at about 2.30 p.m. and reached there at about 4.0 p.m. He visited and inspected the place of occurrence which was the grocery shop of the informant and the deceased and gave a vivid description of the same. He found blood fallen on the floor of the shop room. He seized blood stained earth and prepared seizure list in presence of witnesses, namely, Bela Singh (P.W. 1) and Birendra Singh (P.W. 4). 4. P.W. 11 prepared the inquest report at Nalanda police station in presence of witnesses and sent the dead body of the deceased to mortuary for autopsy. He caused the blood stained earth seized from the place of occurrence to be sent to Forensic Science Laboratory, Patna for analysis. After receiving post mortem examination report and completing investigation he submitted chargesheet against the appellants and finally the trial commenced after commitment. 5. In order to prove its case the prosecution examined P.W. 2 Nagendra Singh, P.W. 5 Mahendra Singh, P.W. 6 Krishna Singh, P.W. 10 Dr. Atmanand Kumar who conducted autopsy on the dead body of the deceased besides P.Ws. 1, 3, 4, 7, 8, 9 and 11 referred to above. P.Ws. 2, 3 and 9 were claimed to be the eye witnesses to the incident leading to commission of murder of the deceased. P.Ws. 3, 4, 7 and 8 are named in the F.I.R. P.Ws. 1, 4 and 8 had arrived at the scene of incident after infliction of assault on the deceased and they saw the deceased lying dead and the appellants retreating with weapons in their hands. P.Ws. 3, 4, 7 and 8 are named in the F.I.R. P.Ws. 1, 4 and 8 had arrived at the scene of incident after infliction of assault on the deceased and they saw the deceased lying dead and the appellants retreating with weapons in their hands. P.Ws. 5 and 7 turned hostile. P.W. 6 is a tendered witness. P.Ws. 2 and 9 are sons while P.Ws. 3 and 5 are brothers of the deceased. P.W. 1 is son of P.W. 5 Mahendra Singh. 6. The trial court after taking the facts, circumstances and evidence brought on record into account found and held the appellants guilty and it convicted appellants Ramashish Singh and Muneshwar Singh under section 302 of the Indian Penal Code (hereinafter to be referred to as the Code) and he further convicted all the five appellants under section 302/149 as well as under section 449 of the Code and it sentenced them to undergo rigorous imprisonment for life under section 302/149 and to undergo rigorous imprisonment for ten years under section 449 of the Code, the sentences having been ordered to run concurrently vide the impugned judgment and order. Though appellant Sohawan Singh was convicted under section 114 of the Code as well, no separate sentence was awarded to him thereunder. 7. Being aggrieved by the judgment and order of conviction and sentence recorded against them, the appellants preferred the instant appeals. They have challenged and assailed the propriety of their conviction by contending that all the material witnesses are relatives and interested witnesses and no conviction can be based on their evidence; that the witnesses made inconsistent and discrepant statements regarding their presence at the time and place of occurrence and in view of their statements the presence of P.Ws. 2 and 9 at the time and place of occurrence becomes doubtful and none of them can be accepted as eye witnesses to the occurrence; that medical evidence is not in consonance with eye witness account of infliction of assault on the deceased and that as a matter of fact, certain miscreants broke into the shop, ransacked the same, looted away goods and articles and in the process the deceased was murdered and the instant case has been concocted to implicate the appellants out of sheer enmity. 8. 8. The prosecution case hinges on the evidence of the informant (P.W. 9), Lakhan Singh (P.W. 3) and Nagendra Singh (P.W. 2) who claimed to have witnessed the incident leading to commission of murder of the deceased as well as the evidence of Bela Singh (P.W. 1), Birendra Singh (P.W. 4) and Sitaram Singh (P.W. 8) who reached the scene of incident after hearing alarm and saw the deceased lying dead in a pool of blood in his shop and the appellants retreating from there with various weapons in their hands. The star witness Surendra Singh, the informant (P.W. 9) reiterated what he had stated in his Fardbeyan. He stated that while he along with his father was in his shop at about 11.30 a.m. on 13.10.1984, appellant Sohawan Singh went there and he asked his father (deceased) for certain goods and articles on credit and his refusal Sohawan Singh abused him and on went away threatening him with dire consequences and after a short while all the appellants having armed themselves with garassa, saif and lathi again went to the deceased in his shop and appellant Ramashish Singh dealt garassa blow on his head and appellant Muneshwar Singh inflicted a saif blow on his palm and other appellants assaulted him with lathi as a result of which he sustained injuries and he succumbed to the injuries instantaneously on the spot. He added P.W. 3 Lakhan Singh, P.W. 2 Nagendra Singh, P.W. 4 Birendra Singh, P.W. 8 Sitaram Singh, P.W. 5 Mahendra Singh, P.W. 6 Krishna Singh and after hearing hue and cry arrived at the time and place of occurrence. Identical is the evidence of P.W. 3 Lakhan Singh, who corroborated P.W. 9 in all material particulars by stating that while he along with P.W. 8 Sitaram Singh was sitting at his Dalan (Darwaza), he saw the appellants with Garassa, saif and lathi proceeding towards the shop in question and so they rushed to the shop and witnessed and Sohawan Singh ordered elimination of the deceased and pursuant thereto Ramashish Singh inflicted garassa blow on his head and Muneshwar Singh dealt a saif blow on his hand and other appellants showered lathi blows on him as a result of which he sustained injuries and died then and there. Like P.W. 9 he also stated that P.Ws. Like P.W. 9 he also stated that P.Ws. 4, 6, 8 and others had arrived at the shop and witnessed the incident. P.W. 3 at first instance could not name appellant Sadhu Singh who, however, was named by him in the next breath in reply to a leading question put to him.This will make no difference nor can it weaken the prosecution case regarding involvement and participation of the appellant Sadhu Singh in the commission of crime nor can it be of any avail to the appellants in view of the facts and circumstances attending to the case. 9. P.W. 2 Nagendra Singh stated that hearing alarm at his Baithka he ran to his shop where he saw that Ramashish Singh inflicted garassa blow on the head of his father (deceased) and Sohawan Singh dealt saif blow on him while other appellants assaulted him with lathi as a result of which he sustained injuries and he succumbed to the injuries instantaneously on the spot. In his cross examination he said that he along with P.W. 3 Lakhan Singh and P.W. 8 Sitaram Singh was sitting at his aforesaid Dalan (Baithka) situated at a distance of about 10-20 bamboos from the place of occurrence. P.W. 3 stated that he was sitting along with Sitaram Singh (P.W. 8) at his Dalan (Baithka) wherefrom he went to the place of occurrence and saw the incident. He further stated that he saw P.Ws. 4, 6 and 8 and one Ajit Singh at the Place of occurrence. He did not speak of presence of P.W 2 at his Baithka nor did he say that P.W. 2 was present at the time and place of occurrence. The informant (P.W.9) did not state either in his fardbeyan or in his deposition that P.W. 2 had arrived at the time and place of occurrence though he spoke of presence of P.W. 3 and others at the scene of incident. The informant (P.W.9) did not state either in his fardbeyan or in his deposition that P.W. 2 had arrived at the time and place of occurrence though he spoke of presence of P.W. 3 and others at the scene of incident. P.W. 2 did not make statement before the I.O. (P.W. 11) as eye witness to the occurrence rather he stated that when he was going to the place of occurrence he saw the appellants running away from the side of his shop with garassa, saif and lathi in their hands and on his arrival at the shop he found his father (deceased) lying dead and he learnt from his brother (informant) as to how the appellants had done away with him. The I.O. (P.W. 11) contradicted the statement made by P.W. 2 in the court. Under the circumstance P.W. 2 cannot be accepted to be an eye-witness to the incident leading to the death of the deceased. 10. When P.W. 1 reached the place of occurrence he saw the deceased lying dead in a pool of blood in his shop. He noticed bleeding injuries on the head and hand of the deceased. According to him P.Ws. 2, 3, 8, 9 and others were present at the scene of incident since prior to his arrival there. He stated that the informant narrated to him the genesis of the occurrence and the manner in which the appellants killed the deceased. Another witness, who arrived at the place of occurrence soon after commission of crime is P.W. 4. He stated that on hulla he rushed to the shop of the informant where he found the deceased lying with bleeding injuries on his head and the appellants were also there by that time. It is in his evidence that P.W. 3 and others told him that Ramashish Singh and Muneshwar Singh assaulted the deceased with garassa and saif respectively while other three appellants showered lathi blows on him. P.W. 4 accompanied the deceased to the police station along with others. The evidence of P.W. 8 Sitaram Singh who had also rushed to the place of occurrence after hearing halla is identical to that of P.W. 4. The statements of P.Ws. 1, 4 and 8 constitutes a strong piece of circumstantial evidence corroborating the evidence of the eye witnesses (P.Ws. 3 & 9). 11. The evidence of P.W. 8 Sitaram Singh who had also rushed to the place of occurrence after hearing halla is identical to that of P.W. 4. The statements of P.Ws. 1, 4 and 8 constitutes a strong piece of circumstantial evidence corroborating the evidence of the eye witnesses (P.Ws. 3 & 9). 11. It has been submitted that P.W. 1 alone spoke of presence of the informant P.W. 9 at the time and place of occurrence and none of other witnesses saw the informant present there. There is no merit and force in the submission and the same must be rejected. It is true that only P.W. 1 said that P.W. 9 had been present at the time and place of occurrence since prior to his arrival there and other witnesses didnot speak like that but this omission on the part of the witness is quite immaterial and it must be ignored. It is just possible that due to defective and short memory the witness could not speak of presence of the informant at the time and place of occurrence. 12. The witnesses, were cross examined at length but nothing was elicited in their cross examination to demolish their veracity. P.Ws. 2 and 3 were put suggestion that in a case of murder of the father of appellant Ramashish Singh committed in the year 1962 Musafir Singh (P.W. 7), Parmeshwar Singh (father of the deceased) and others were made accused and in the year 1954 the mother of the deceased had instituted Nalanda RS. Case No. 20(12)54 against appellant Ramashish Singh and others and there was also certain other litigation between the parties and P.Ws. 2, 6 and 8 were witnesses against the appellants, however, none of P.Ws. 2, 6 and 8 was suggested that he was witness against the appellants in previous litigations. P.Ws. 2 and 3 expressed their ignorance about the aforesaid old cases between the Darties. The same is the case with P.Ws. 4 and 9 who were merely suggested about institution of case regarding commission of murder of father of appellant Ramashish Singh. No chit of paper was brought on records to show that in the murder case, referred to above, certain members of the prosecution party were accused and the witnesses of the present case had also deposed in those old cases against the appellants. No chit of paper was brought on records to show that in the murder case, referred to above, certain members of the prosecution party were accused and the witnesses of the present case had also deposed in those old cases against the appellants. But from the suggestion inference can be drawn that the parties had been on litigating and inimical terms since prior to the incident. However, enmity is a double edged weap@n that cuts both ways. The evidence of the witnesses cannot be rejected merely on the ground of existence of animosity between the parties. 13. It has been vehemently contended that all the material witnesses are relatives and interested ones and no conviction can safely be based on their evidene. The contention is devoid of merit and force and the same must be discarded out right. Mere relationship of witnesses is no ground for discarding their evidence. The same is the case with the interested witnesses. The evidence of relatives and interested witnesses is to be subjected to close and careful scrutiny and if on such scrutiny it is found to have a ring of truth, it cannot be rejected totally on account of certain omissions and variations visiting their statements. In the instant case the evidence of the material witnesses is quite consistent and corroborative free from inherent taint and infirmity and the same must be accepted and acted upon. 14. Dr. Atmanand Kumar (P.W. 10) conducted autopsy on the dead body of the deceased at 7.50 a.m. on 14.10.1984. He found (i) Incised wound on left parietal region of dimension of 4" x " x scalp deep and (ii) Incised wound of dimension Of 2 1+/2" X 1/3" X skin deep into web space of left thumb and index finger. Both the injuries were antemortem. On dissection left parietal bone was found fractured and depressed. Meninges were congested and full of blood clots. Brain tissue was lacerated. Heart was full of blood and lungs congested. Stomach was empty and small intestine contained semi digested food while large intestine contained gas and faecal matter. In the opinion of the doctor death occurred due to the aforesaid head injury caused by heavy sharp cutting weapon such as garassa and time elapsed since death was 12 to 24 hours. 15. Heart was full of blood and lungs congested. Stomach was empty and small intestine contained semi digested food while large intestine contained gas and faecal matter. In the opinion of the doctor death occurred due to the aforesaid head injury caused by heavy sharp cutting weapon such as garassa and time elapsed since death was 12 to 24 hours. 15. It has come in evidence that the deceased had taken breakfast at about 8.30 a.m. The incident took place at about 11.30 a.m. Digestion starts soon after taking meal or breakfast. Whatever breakfast was taken by the deceased was likely to be digested within three hours though some semi digested food might possibly remain present in small intesine during three hours of taking breakfast. Naturally the doctor found stomach empty and certain semi digested food in small intestine. 16. The ocular witnesses said that the three appellants other than Ramashish Singh and Muneshwar Singh assaulted the deceased with lathi. The doctor found only two incised wounds and no injury caused by hard and blunt substance such as lathi. It is just possible that infliction of lathi blows caused simple and superficial injuries and they might have vanished by the time autopsy was held or such injuries went unnoticed and ingored by the doctor but this in itself cannot introduce any infirmity in the prosecution case. 17. The medical evidence discussed above is in consonance with the eye witness account of the incident leading to infliction of assault on the deceased resulting in his death. 18. P.Ws. 5 and 7 did not support the prosecution case and they were declared hostile by the prosecution. Their attention was drawn to their previous statements recorded under section 161 Cr.P.C. The Investigating Officer (P.W. 11) contradicted them by stating that they had stated before him that when hearing alarm they rushed to the shop of the deceased, they found the appellants running away from the side of the shop with weapons in their hands and on their arrival in the shop they saw the deceased lying dead in a pool of blood. The witnesses appeared to have turned hostile to the truth. 19. The witnesses appeared to have turned hostile to the truth. 19. P.W. 11 Chandradeo Sharma, the Investigating Officer, stated that at about 2.0 p.m. on 13.10.1984 the informant and others had brought the dead body of deceased Raj Kumar Singh to Nalanda police station where he recorded the Fardbeyan of P.W. 9 and he soon took up investigation and proceeded for village Mokarrampur where the place of occurrence situated and after he arrived there at about 4.0 p.m., he visited and inspected the place of occurrence. He gave a vivid description of the same. He found blood fallen on the floor of the shop. He seized blood stained earth and prepared seizure list in presence of Birendra Singh (P.W. 4) and Bela Singh (P.W. 1) and he later on sent the seized blood to the Forensic Science Laboratory, Patna for analysis. The witness added that he prepared the inquest report and caused the dead body of the deceased to be sent to mortuary for autopsy. In his cross examination he stated that there was no blood on the chowki or tins etc. kept in the shop and the blood seized by him was fallen on the earth under the chowki. This statement of the Investigating Officer is misconceived one. He did not mention in the case diary that blood was fallen under the chowki and so his statement to that effect made in his cross examination cannot be accepted and the same must be ignored. The fact is that the blood had fallen on the ground by the side of the chowki and not under the chowki. 20. Submission has also been advanced that Munnu, Mishri. Badri and Rampati resided in the vicinity of the shop which was the scene of incident and they were independent persons but none of them was examined by the prosecution. It is to be observed that it has not come in evidence that the aforesaid persons had also arrived at the time and place of occurrence and hence their non-examination is of no consequence. Number of witnesses is immaterial. What is of important significance is merit and credibility of evidence adduced in the case. It is to be observed that it has not come in evidence that the aforesaid persons had also arrived at the time and place of occurrence and hence their non-examination is of no consequence. Number of witnesses is immaterial. What is of important significance is merit and credibility of evidence adduced in the case. Besides, it is a matter of common experience that in faction ridden village where murder takes place as a result of family feuds, independent villagers are seldom ready and willing to come forward to depose for fear that giving evidence might invite the assailants wrath and they may be exposed to very serious risks. 21. The contention that the evidence of the witnesses examined in the case is inconsistent and discrepant is nonmerritous. No material contradiction or even inconsistency has been pointed out rather on a careful scrutiny of evidence it would be crystal clear that there is hardly anything in cross examination which might cast doubt on the truthfulness of their testimony. There is nothing on records to impeach their credibility. They are natural and competent witnesses and they have deposed in a forthright manner. 22. Learned counsel for the appellants could not persuade us to accept the defence version that no such incident took place and the deceased was not murdered at the time and in the manner alleged by the prosecution rather certain miscreants broke into his shop, committed theft and killed him in the night intervening between 12th and 13th October 1984 and the appellants were implicated out of sheer enmity. 23. Ocular evidence considered together with medical evidence and promptitude with which the first information report was lodged at the police station concerned that situated at a distance of about 10 kms. from the place of occurrence within two and a half hours at 2.00 p.m. in respect of the incident taking place at 11.30 a.m. without any opportunity having been given for concoction and embellishment gives rise to the inevitable and irresistible conclusion that the prosecution has proved its case beyond the reasonable doubt. There is no reason for me to interfere with the findings recorded by the trial court. 24. Both appellants Ramashish Singh and Muneshwar Singh were convicted under section 302 of the Code. There is no reason for me to interfere with the findings recorded by the trial court. 24. Both appellants Ramashish Singh and Muneshwar Singh were convicted under section 302 of the Code. In this connection it is to be observed that the appellant Muneshwar Singh inflicted saif blow causing injury of dimension of 2" x 1/2" x 1/2" on the web between left thumb and index finger. Obviously this injury cannot be said to be dangerous to life. The doctor also opined that the deceased died due to head injury. It is nowhere in his evidence that injury between the left thumb and index finger of the deceased was so serious as to endanger his life. Under such circumstance conviction of appellant Muneshwar Singh under section 302 of the Code does not seem to be justified. The appellant Ramashish Singh has been rightly convicted under section 302 of the Code. 25. All the five appellants including Muneshwar Singh were members of the unlawful assembly and the deceased was obviously done away with in prosecution of common object of the assembly. This fact was also not assailed and challenged in course of hearing. Hence all the appellants are liable under section 302/149 of the Code. 26. In view of what has been stated and observed in the preceding paragraphs, I maintain and confirm conviction and sentence of appellant Ramashish Singh under section 302 of the Code setting aside conviction and sentence thereunder awarded to appellant Muneshwar Singh. Conviction and sentence of all the five appellants including Muneshwar Singh under section 302/149 as well as under section 449 of the Code are sustained and upheld. 27. With the aforesaid modification in conviction and sentence these appeals are dismissed. Appellant Ramashish Singh is already in jail custody. Bail bonds of other appellants are hereby canvcelled and they are directed to surrender to serve out sentences awarded to them Within four weeks failing which the court below shall take coercive steps against them for securing their surrender and remand to jail custody. S.N.Jha, J. 28 I agree.