Judgment Chandra Mohan Prasad, J. 1. The three appeals arise out of the order of conviction and sentence respectively dated 9.08.2000 and 10.08.2000 of the 1st Additional Sessions Judge, Bhagalpur passed in Sessions Trial No. 556 of 1991 whereby the four appellants have been convicted u/s. 302 read with Sec. 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. 2. The F.I.R. of the case was recorded by S.I. P.C. Ram (P.W. 8) of Jagdishpur Police Station on 22.09.1989 at 9:30 P.M. on the statement of informant Shiv Pujan Bhagat (P.W. 6), the son of deceased Saryu Bhagat at the place of occurrence situated on the pitch road in village Nima. The prosecution story, as set out in the fard-beyan, is that, that day (22.9.1989) at 5:15 P.M., he (the informant) alongwith his father (the deceased) was going to his house from Jamuni Morh on a rickshaw. As soon as the rickshaw reached near a mango tree situated north of village Mima, the appellants (1) Ajablal Yadav, (2) Rajendra Yadav, (3) Devendra Yadav and (4) Ganesh Yadav, seeing the informant and his father (the deceased) stopped the rickshaw and abusively told them that they were always litigating with them (appellants), hence, they had to be finished. Then appellant Rajendra Yadav pulled the deceased out from the rickshaw. Thereafter, all the four appellants thrashed the deceased down on the ground and crushed the head of the deceased. When the informant prohibited the appellants, they threatened him with the same consequence, hence, out of fear, he did not make any protest and remained standing there. In the mean time, informants brother Banarasi Prasad (P.W. 4), Arjun Prasad and Mahesh Bhagat (both not examined) as well as several passersby assembled there and protested at which the appellants fled away towards their houses through field. As a result of assault, the deceased died there. The informant stated that several litigations were going on between the deceased and the appellants and on the previous day, i.e. 21st September 1989, appellant Ajablal had threatened the deceased to withdraw the case, else he would be finished and that getting a chance, the appellants killed the deceased. On the basis of the fard-beyan, F.I.R. was recorded at the Police Station. On the basis of the fard-beyan, F.I.R. was recorded at the Police Station. Investigation commenced and on completion of the investigation, charge-sheet was submitted and the appellants were put on trial and they have been convicted and sentenced, as above. 3. As many as eleven witnesses have been examined by the prosecution. P.W. 6 Shiv Pujan Bhagat is the informant. P.W. 1 Mahesh Mandal, P.W. 2 Sakaldeo Das (the rickshaw puller) and P.W. 4 Banarasi Das have been examined as eye witnesses to the occurrence. P.W. 3 Basudeo Mandal is a witness on the point of preparation of inquest report of the dead-body, but he has turned hostile. P.W. 5 Jageshwar Paswan is the Chaukidar who stated to have brought the dead body for Post Mortem Examination. P.W. 7 Dr. Kailash Jha is the doctor who held the Post mortem Examination on the dead body of the deceased. P.W. 8 Prem Chandra Ram, S.I. is the I.O. of the case. P.W. 9 Prahlad Kumar is the S.D.P.O. who had supervised the investigation. P.W. 11 Raj Shekhar Prasad is also an I.O. who conducted the concluding portion of the investigation and submitted charge-sheet. P.W. 10 Narmadeshwar Singh is the Officer In-charge of the concerned Thana Malkhana who proved the report (Ext-9) with respect to blood stained earth and cloth seized from the P.O. 4. Before discussing the ocular evidence, it is proper to discuss the medical evidence and the evidence of the I.O. first. The doctor (P.W. 7) who conducted the P.M. Examination on the dead body of the deceased Saryu Bhagat, deposed that on 23rd September 1989 at 11:30 A.M., he conducted the P.M. Examination and found the following Injuries on the person of the deceased: i) Multiple lacerated wounds of varried size on head right side from temple to occipital and parietal eminence to right ear in the area of 8.1/4" x 5.1/2" x brain matter. Skull bone had depressed fracture on right temple; Brain matter was lacerated and clot present; upper half of right ear absent and margin was lacerated. ii) Three lacerated wounds (incised looking) on left side head.... two on vault and one on temple, a little of bleeding signs......each 3"x1/2" x bone. The doctor opined that injury no. (i) was ante mortem in nature and injury no. (ii) was peri mortem. The injuries were caused by hardblunt substance. ii) Three lacerated wounds (incised looking) on left side head.... two on vault and one on temple, a little of bleeding signs......each 3"x1/2" x bone. The doctor opined that injury no. (i) was ante mortem in nature and injury no. (ii) was peri mortem. The injuries were caused by hardblunt substance. The cause of death was shock and haemorrhage. Time elapsed since death was 24 hours + 3 hours. The carbon copy of the P.M. Report was proved by the doctor and it was marked Ext-4. In his cross-examination, at Para-10 the doctor deposed that in stomach, he found undigested fried type Chura and others with fluid having alcoholic smelltotal quantity 1.1/2 pound. He further deposed at Para-13 that he had not found any injury on the front side of the head of the deceased. 5 The I.O. (P.W. 8) deposed that on 22.09.1989, at 9:00 P.M., while he was on patrolling duty on the occasion of Chehallum and when he reached Jamuni Morh, he learnt from 2-3 persons that a murder had been committed on the pitch road in village Nima. Learning this, he reached there and found the dead body of the deceased lying on the pitch road there. The informant Shiv Pujan Bhagat (P.W. 6) was present there whose statement was recorded as fard-beyan. He proved the writings on the fard-beyan as Ext-5. He further deposed that A.S.I. Ram Chandra Singh had seized the blood stained soil from the P.O. and a seizure list was also prepared. The writing on the seizurelist was proved as Ext-6. He further deposed that on the basis of fard-beyan, the F.I.R. was recorded at the P.S. Then he deposed that he inspected the P.O. which situated on the pitch road 30 yards east of village Nima. At Para-29 of his evidence, he deposed that witness Banarasi Bhagat (P.W. 4) had stated before him that while he was returning from Balua Hat in the evening, his brother (P.W. 6) and father (the deceased) had proceeded ahead on a rickshaw and he (P.W. 4) had stayed at Jamuni Morh and that hearing hulla he had speedly gone towards the P.O. on his bicycle and had found his father (the deceased) lying there dead and that his brother (P.W. 6) had stated to him about the occurrence. Thus, according to the statement of P.W. 4, as given before the I.O. during the investigation, he is not an eye witness but he had speedly gone towards the P.O. on hearing hulla and found his father lying there dead and he learnt about the occurrence from P.W. 6. 6. The informant (P.W. 6) deposed that on 22.09.1989 at 5:15 P.M. he alongwith his father Saryu Bhagat (the deceased) was returning on a rickshaw from Jamuni Morh and that while they reached on the pitch road near a mango tree, north of their village Nima, appellants Ajablal Yadav, Rajendra Yadav, Devendra Yadav and Ganesh Yadav who all were present there stopped the rickshaw. Ajablal stated that he (the deceased) was always filing cases against them, hence, he had to be finished. At this, appellant Rajendra Yadav pulled the deceased out of the rickshaw and then all the four appellants thrashed the deceased down on the ground and thereafter they crushed his head with stone and brickbats. He (the informant) prohibited the appellants but they did not stop; rather they threatened him with the same consequence saying that if he protested, he would also be killed. The informant further deposes that due to the assault, the deceased died at the spot and thereafter the appellants fled away towards their houses. About the motive, the informant deposed that his father (the deceased) had several litigations relating to land with the appellant Ajablal Yadav and due to that dispute, the appellants killed the deceased. He deposed that he had given his statement and his fard-beyan was recorded by Police at the spot. He identified his signature to the fard-beyan which was marked Ext-1/4. At Para-7 he deposed that besides him, his brother Mahesh Mandal (P.W. 1) rickshaw puller Sakaldeo (P.W. 2) as well as Chamaklal Mandal, Loungi Mandal, Arjun Bhagat and Mahesh Bhagat had also come to the P.O. and had seen the occurrence. These witnesses have not been examined by the prosecution, but this witness has deposed in his evidence that the witnesses Arjun Bhagat and Mahesh Bhagat had gone in collusion with the accused persons. These witnesses have not been examined by the prosecution, but this witness has deposed in his evidence that the witnesses Arjun Bhagat and Mahesh Bhagat had gone in collusion with the accused persons. At Para-8 of his evidence, the informant has explained that some times, his villagers mistook him as his brother Banarasi Bhagat (P.W. 4) and called him with the name of Banarasi Bhagat and some times his brother is also similarly mistaken and called by the villagers with his name. At Para-32 of his cross-examination, he deposed that Police had seized blood soaked soil and blood stained brickbats from the P.O. and a seizure-list was prepared on which he had put his signature. At Para-33 he deposed that the rickshaw was moving with medium speed and that seeing the appellants proceeding towards him, he had become afraid and that the appellants had immediately come close to the rickshaw and that he had immediately got down from the rickshaw and that, in the mean time, the appellants captured his father (the deceased). He further deposed that he stood at a distance and raised hulla. He continued to depose that the appellants had also tried to capture him, but they could not be able to catch him. He also deposed that the accused persons had threatened him. It appears natural that the appellants did not engage in catching this witness (the informant), as they got engaged in capturing and assaulting the deceased. At Para-34 of his evidence, the informant deposed that the appellants were carrying brickbats and that they were not holding any sharp edged weapon or piece of glass. At Para-36 this witness further deposed that all the four appellants had captured the deceased and threw him down on the ground. He also stated that at the time of assault, his father was lying down with his side up and that some times he was moving his left side up and some times right side up. He further deposed that the appellants had given 5-6 brick blows on the deceaseds head and that they were assaulting with half piece of brick. He further deposed that some of the appellants were catching hold of the deceased and some were assaulting him with brickbats. He also deposed that blood had come out of deceaseds head and it had fallen on the ground. He further deposed that some of the appellants were catching hold of the deceased and some were assaulting him with brickbats. He also deposed that blood had come out of deceaseds head and it had fallen on the ground. Thus, the informant is a natural witness who gives a detailed description of the assault at the hands of the appellants. 7. P.W. 4 Banarasi Prasad is deceaseds another son who deposed that the occurrence took place in the evening of 22nd September 1989. He stated that his father (the deceased) and brother (the informant) had left Baluachak Hat on a rickshaw and that after 10-15 minutes of their departure from Baluachak Hat, he had also left the Hat on a bicycle and was going behind them. Then he says that when the rickshaw reached at the P.O., appellant Ajablal Yadav, Rajendra Yadav, Devendra Yadav and Ganesh Yadav were present there. Ajablal ordered to kill Saryu Bhagat saying that he (the deceased) was filing cases against them. At this, Rajendra Yadav dragged the deceased out from the rickshaw and then all the four appellants thrashed him down on the road and started crushing his head with brickbats. He (P.W. 4) and his brother (P.W. 6) prohibited the appellants but they did not stop. The deceased died there. He also deposed that when he had prohibited the appellants, they had threatened him that he would also be killed. At Para-4 of his evidence, he has clarified that some times villagers call him as Shiv Pujan Bhagat (P.W. 6) and some times his brother Shiv Pujan Bhagat (P.W. 6) is called by villagers with his (P.W. 4s) name. At Para-5 he deposed that his brother had gone to the P.S. and he had remained at the P.O. with the dead body. At Para-15 he has stated that the physical feature and complexion of his (P.W. 4) and his brother (P.W. 6) are quite similar. He further deposed at Para-6 that the Police had seized blood soaked soil and blood stained brickbats and the seizure-list was also prepared on which he had put his signature (Ext-1). He further deposed at Para-12 that he used to purchase grocery articles from Baluachak Hat and sell it out by vending at Bhagalpur. He further deposed at Para-6 that the Police had seized blood soaked soil and blood stained brickbats and the seizure-list was also prepared on which he had put his signature (Ext-1). He further deposed at Para-12 that he used to purchase grocery articles from Baluachak Hat and sell it out by vending at Bhagalpur. During cross-examination at Para-20 his attention was drawn towards his previous Police statement to the effect that his brother and father (the deceased) had proceeded ahead and he had stayed at Jamuni Morh and that on hearing hulla, he had speedly proceeded towards the P.O. and reaching there, he had seen his father in dead condition and that he had learnt about the occurrence from his brother (the informant). On his attention being drawn, this witness denied to have made such statement before the Police but the I.O. (P.W. 8, Para-29) proved the statement of this witness (P.W. 4.) as made before him during the investigation that while he (P.W. 4) was returning from Balua Hat, his brother (the informant, P.W. 6) and father (the deceased) proceeded ahead on a rickshaw and he had stayed at Jamuni Morh and that hearing hulla he had proceeded speedly towards the P.O. and reaching there, he saw his father in dead condition and that he had learnt about the occurrence from his brother (the informant). Thus, according to the statement as made by the witness before the I.O. during the investigation, this witness is not an eye witness and he reached the P.O. subsequently on hulla and learnt about the occurrence from his brother (informant). 8. P.W. 2 Sakaideo Das is the rickshaw puller who is said to have carried the deceased and the informant on the rickshaw during the occurrence. He deposed that in the evening he was carrying Saryu Bhagat (the deceased) and his son on his rickshaw and that while the rickshaw reached ahead of Baijani and just before Nima Morh, appellants Devendra and Ganesh started crushing the head of the deceased and thereby they killed the deceased. This witness states about the appellants Ganesh and Devendra having assaulted the deceased and he does not say about the remaining two appellants, namely, Rajendra and Ajablal committing any assault on the deceased. At Para-5 of cross-examination, this witness says that he knows appellants Rajendra and Ajablal who are residents of village Gaurachakki. This witness states about the appellants Ganesh and Devendra having assaulted the deceased and he does not say about the remaining two appellants, namely, Rajendra and Ajablal committing any assault on the deceased. At Para-5 of cross-examination, this witness says that he knows appellants Rajendra and Ajablal who are residents of village Gaurachakki. Thus, this witness is acquainted with the remaining two appellants, namely, Rajendra and Ajablal and, therefore, they are not strangers to him. At Para-10 of his cross-examination, he deposed that Police had not recorded his statement during the investigation. 9. P.W. 1 Mahesh Mandal is another eye witness to this occurrence who deposed that in the evening at about 5:00 Oclock, he heard hulla "Maro-Pakro" from the road. The hulla was being raised by the appellants Ajablal, Ganesh, Devendra and Rajendra etc. The hulla was being made in a bid to capture and assault deceased Saryu Bhagat and Banarasi Bhagat (P.W. 4). The witness further deposed that appellants assaulted the deceased with stones and brickbats as a result of which the deceased died. He further deposed that besides him, witnesses Loungi Mandal, Chamru Mandal and Sakaldeo Mandal had also seen the occurrence. These three witnesses were not examined by the prosecution. At Para-3 of his evidence, he deposed that on the rickshaw, the deceased and his son Banarasi Bhagat were going. Thus, according to the evidence of this witness, the deceased was going with his son Banarasi Bhagat who has been examined as P.W. 4. But according to the case of prosecution, deceaseds another son Shiv Pujan Bhagat (P.W. 6) was going with the deceased on the rickshaw. In the evidence of P.W. 6 at Para-8 and P.W. 4 (Para-4) the two brothers, namely, Banarasi Bhagat and Shiv Pujan Bhagat have stated that their physical appearance and complexion resembled to a great extent as a result of which the villagers some times call, Shiv Pujan Bhagat as Banarasi Bhagat and Banarasi Bhagat as Shiv Pujan Bhagat. Thus, there is reasonable explanation that P.W. 1 mistook P.W. 6 Shiv Pujan Bhagat as deceaseds another son Banarasi Bhagat and he stated in his evidence that Banarasi Bhagat was accompanying the deceased on the rickshaw at the time of occurrence. Thus, there is reasonable explanation that P.W. 1 mistook P.W. 6 Shiv Pujan Bhagat as deceaseds another son Banarasi Bhagat and he stated in his evidence that Banarasi Bhagat was accompanying the deceased on the rickshaw at the time of occurrence. Therefore, due to this reason, no adverse inference can be drawn regarding the informant accompanying the deceased at the time of occurrence on the ground of evidence of P.W. 1 at Para-3 that Banarasi Bhagat had accompanied the deceased. This witness (P.W. 1) has also deposed at Para-4 that the Police had not recorded his statement during the investigation and he deposed for the first time in court. At Para-19 of his evidence, he deposed that the informant Shiv Pujan Bhagat was present with him at the P.O. Thus, this shows the presence of this witness and the informant at the P.O. during the occurrence. 10. P.W. 10 is the In-charge of Malkhana of Jagdishpur Police Station where deceaseds blood soaked clothes, soil and brickbats were kept as exhibits of this case. He has proved his report (Ext-9) to the effect that on 27th September 1995, due to entering of flood water in the Malkhana, blood soaked earth and brickbats which were preserved as exhibits of this case were washed away for which Jagdishpur P.S. S.D. Entry No. 171 dated 7th September 1996 was recorded at the Police Station. 11. Learned counsel for the appellants argued that in this case, several witnesses, namely, Loungi Mandal, Chamru Mandal, Sakaldeo Mandal are said to have witnessed the occurrence, as per the evidence of P.W. 1 but none of these witnesses has been examined by the prosecution. No doubt, some of the witnesses, namely, Chamaklal Mandal, Loungi Mandal, Arjun Bhagat and Mahesh Bhagat as named by the informant (P.W. 6, Para-7) as the witnesses who had come to the P.O. and had seen the occurrence have not been examined by the prosecution, but about witnesses, Arjun Bhagat and Mahesh Bhagat, the informant explains in Para-7 of his evidence that these witnesses had come under the influence of the accused persons. So far the question of non-examination of other witnesses is concerned, the evidence of the witnesses examined by the prosecution, cannot be discarded simply due to the reason that some other witnesses have not been examined. So far the question of non-examination of other witnesses is concerned, the evidence of the witnesses examined by the prosecution, cannot be discarded simply due to the reason that some other witnesses have not been examined. The evidence of the witnesses examined by the prosecution has to be examined on Its merit and the court has to decide whether It inspires confidence and whether reliance can be placed on it or not. 12. As regards the witnesses examined by the prosecution, P.W. 6 (the informant) who is son of the deceased is a witness who had accompanied the deceased on the rickshaw at the time when the deceased was pulled out of the rickshaw and he was thrashed down and his head was crushed by brickbats. Witness Banarasi Prasad (P.W. 4) is another son of the deceased who was coming behind the rickshaw on a bicycle has deposed as an eye witness to the occurrence, but considering his statement before the I.O. that the rickshaw had proceeded ahead and he had stayed at Jamuni Morh and that on hulla he had sped his bicycle towards the P.O. and reaching there, he had seen his father (the deceased) lying there dead and he had learnt about the occurrence from his brother (P.W. 6), it appears that in his earliest statement before the I.O., this witness was not an eye witness but he reached the P.O. shortly after the occurrence on hearing hulla. Under the circumstances, it is not safe to place reliance on this witness as a witness who had seen with his eyes the occurrence of assault on the deceased at the hands of the appellants. P.W. 1 is an eye witness who is said to have come out of his house on hearing hulla and to have seen the occurrence of assault on the deceased. This witness has deposed that all the four appellants had assaulted the deceased with brickbats and stones. 13. P.W. 2 Sakaldeo Das is the rickshaw puller who has deposed that he had carried the deceased and his son on his rickshaw and that when he came near Nima road, the appellants Devendra and Ganesh had assaulted the deceased and they had crushed his (deceaseds) head with brickbats and stones. Thus, this witness names only appellants Devendra and Ganesh as the assailants. 14. Thus, this witness names only appellants Devendra and Ganesh as the assailants. 14. Now considering the ocular evidence brought by the prosecution, only the informant (P.W. 6), P.W. 1 and P.W. 2 (rickshaw puller) appear to be the eye witnesses whose evidence requires to be considered as witness on the point of occurrence. It is admitted in the fard-beyan that due to litigation, there was enmity between the informant, the deceased and the accused appellants. The informant (P.W. 6) deposes that all the four appellants had assaulted the deceased. It has come in his evidence that when the appellants had dragged the deceased out of rickshaw, he (the informant) had immediately come down from the rickshaw and stood at a distance in order to save himself and he had raised hulla but the accused had threatened him. Thus, the informant was not a witness who had seen the occurrence as a disinterested silent expectator without any fear of assault, but he (the informant) too was afraid of assault and he was also trying to save himself from the accused persons. So far another eye witness (P.W. 1) is concerned, he had reached the P.O. on hearing hulla. So this witness can be said to have come to the P.O. shortly at the time of or after beginning of the assault. These two witnesses (P.Ws. 6 and 1) state in their evidence that all the four appellants had assaulted the deceased. But the evidence of the rickshaw puller (P.W. 2) is quite important in this regard. The rickshaw puller was present at the P.O. throughout the occurrence. From the circumstances of the case, it appears that the rickshaw puller was quite a disinterested person and he had no kind of enmity with either side nor he had any fear of assault on him, therefore, under the circumstances, the rickshaw puller was the witness who could have witnessed the occurrence with all equanimity. This rickshaw puller (P.W. 2) has deposed that appellants Devendra and Ganesh had assaulted the deceased crushing his head with brickbats and stones. Thus, this witness names only two of the appellants, i.e., Devendra and Ganesh as the assailants. At Para-5 of his cross-examination, this witness has stated that he is acquainted with appellants Rajendra and Ajablal who are residents of Gauriachakki. Thus, this witness names only two of the appellants, i.e., Devendra and Ganesh as the assailants. At Para-5 of his cross-examination, this witness has stated that he is acquainted with appellants Rajendra and Ajablal who are residents of Gauriachakki. Thus, the two appellants not named by the rickshaw puller are acquainted to him, therefore, there is no scope for even thinking that the names of these two appellants were not stated by the rickshaw puller due to the reason that they were not known to him. 15. P.Ws. 6 and 1 who claimed to be the eye witnesses name all the four appellants as assailants. It is common experience that while deposing in courts witnesses may make additions or embellishments in their evidence. Therefore, it becomes the duty of the court to examine the evidence of such witnesses from all angles so that the additions or embellishments can be separated from their evidence in order to find out the real occurrence. Examining the evidence of P.Ws. 6 and 1, with this view, especially in the light of the evidence of P.W. 2 (the rickshaw puller), it appears that the evidence of rickshaw puller which has to be relied on without any doubt or hesitation, is indicative of the fact that the participation of the two appellants, namely Rajendra and Ajablal in the occurrence of assault on the deceased, as stated by the P.Ws. 6 and 1, is doubtful. Therefore, these two appellants, namely, Rajendra and Ajablal are entitled to benefit of doubt and they deserve to be acquitted due to this reason. 16. Learned counsel for the appellants argued that P.W. 1 and P.W. 6 have stated in their evidence that their statement was not recorded by the I.O. and that they deposed in the court for the first time. Learned counsel argued that since the witnesses were not examined by the I.O., their evidence does not remain to be of much value. In this regard, it is found that the evidence of a witness cannot be discarded simply because of the reason that the I.O. did not examine that witness during investigation. The rickshaw puller (P.W.-2) is the most important witness of this case. It is strange why the I.O. did not care to examine the rickshaw puller. In this regard, it is found that the evidence of a witness cannot be discarded simply because of the reason that the I.O. did not examine that witness during investigation. The rickshaw puller (P.W.-2) is the most important witness of this case. It is strange why the I.O. did not care to examine the rickshaw puller. If some important witnesses are left by the I.O. it is a dereliction of duty on his part and due to such lapses on the part of the I.O., the evidence of such witnesses as adduced in court, cannot be discarded and disbelieved. 17. During the hearing, learned counsel for the appellants argued that the blood soaked earth and brickbats seized from the P.O. have not been produced in court, but there is explanation for its non-production in the evidence of P.W. 10, the Incharge of the Malkhana who has stated that the blood soaked earth and the brickbats, kept as exhibits in the Malkhana were washed away in the flood water entering into the Malkhana and that for it S.D. Entry No. 171 dated 7.09.1996 was also registered at the Police Station. 18. Appellants counsel, referring to the evidence of the doctor, argued that the injury no. (ii) mentions three lacerated wounds which were incised looking and according to injury no. (i), it was also multiple lacerated wound, but the upper half of the right ear was absent and the margin was lacerated. He further argued that the injuries though opined by the doctor as lacerated wounds, but they were incised looking. Hence, it was argued that a doubt is entertained that the injuries might also have been caused by sharp weapon completely cutting the upper half of the ear. But considering the circumstances and other aspects of the case, there does not remain any doubt that the injuries were caused by brickbats and not by any sharp weapon. It has come in the evidence of the witnesses that the accused had assaulted the deceased with pieces of brickbats and stones. If bricks and stones are broken into pieces, their sides and cones may take sharp shape and when the brickbats or stones are used as arm with its sharp sides or cones it may cause lacerated wound of incised looking and it may also cause cutting and separating of the portion of the ear as found by the doctor. If bricks and stones are broken into pieces, their sides and cones may take sharp shape and when the brickbats or stones are used as arm with its sharp sides or cones it may cause lacerated wound of incised looking and it may also cause cutting and separating of the portion of the ear as found by the doctor. Therefore, the medical evidence is in consonance with the ocular evidence insofar as the manner of assault and the injuries caused are concerned. 19. The appellants counsel argued that the F.I.R. of the case was registered on 22.09.1989 and it is shown in its column no. 3 that it had been sent to the Chief Judicial Magistrate by Special Messenger but the initial of the Chief Judicial Magistrate as put on it bears the date "26.9.1989", Therefore, due to this reason, learned counsel argued that there has been delay in sending of the F.I.R. to the Chief Judicial Magistrate. Hence, it was further argued that the delay would indicate chance of concoction or embellishment in the F.I.R. and the fardbeyan. The learned A.P.P. replied that it has come in the evidence of the I.O. (P.W. 8) that on the date of occurrence, i.e., on 22.9.1989, he was engaged in law and order duty on the occasion of Chehallum. It was also argued by the learned A.P.P. that on the occasion of such festivals, courts also remain closed for some days. Hence, it was further argued that there might have been some delay in receiving of the F.I.R. or its placing before the Chief Judicial Magistrate. Considering the circumstances as argued, the delay caused in its putting up before the Chief Judicial Magistrate for signature does not appear to be such a vital point so as to discredit and discard all the ocular evidence proved by the prosecution. 20. Appellants counsel argued that in this case, the deceaseds two sons claimed to be the eye witnesses to the occurrence, but, they have not reacted or protested in a manner in which sons of the deceased are expected to react and protest to such occurrence. But this cannot be a sole test to decide the testimony of any witness. Different witnesses may react in different manner. But this cannot be a sole test to decide the testimony of any witness. Different witnesses may react in different manner. Some may get stunned, some may become speechless, some may become nervous, some may run away to save their lives and some may have courage to take risk of life and indulge in active manner in protesting the acts of the assailants. In the instant case, the occurrence of assault appears to have taken place in a very short span of time. It has come in evidence of the informant that when the accused had dragged his father (the deceased) out of the rickshaw, he had got down from the rickshaw and ran away to a distance for saving his life. Thus, under the circumstances, there does not appear to be an occasion for the deceaseds son (the informant) to have reacted and protested to the accuseds act of assault in an active and physical manner. Therefore, due to the informants son having not reacted in an active manner, any adverse inference does not require to be called for under the circumstances of the case. 21. In view of the facts and circumstances of the case, as discussed above, the appellants Rajendra Yadav and Ajablal Yadav are entitled to benefit of doubt. 22. In the result, Cr. Appeal No. 420 of 2000 filed on behalf of appellants Rajendra Yadav and Ajablal Yadav is allowed. The conviction and sentence passed against them are set aside and they are acquitted of the charge. It appears that appellant Rajendra Yadav is in jail. He is ordered to be set at liberty forthwith, if not wanted to be detained in any other case. Appellant Ajablal Yadav is on bail and, as such, he is discharged from the liability of bail bonds. So far appellants Devendra Yadav and Ganesh Yadav @ Ganesh Prasad Yadav are concerned, the prosecution has been able to prove the charge against them beyond shadow of doubt. Hence, Cr. Appeal No. 467 of 2000 filed on behalf of appellant Devendra Yadav and Cr. Appeal No. 475 of 2000 filed on behalf of appellant Ganesh Yadav @ Ganesh Prasad Yadav are dismissed and the conviction and sentence passed against these two appellants are upheld. R.N.Prasad, J. 23 I agree.