Judgment V.N.Sinha, J. 1. This appeal is directed against the judgment and order of conviction and sentence dated 21.12.2002, passed by Sri Shio Murat Ram, 5th Additional Sessions Judge, Samastipur in Sessions Trial No. 499 of 1990, whereunder five appellants have been convicted under Section 302/34 of the Indian Penal Code and have been sentenced to death and directed to be hanged by neck till they are dead. 2. The prosecution case, as set out in the fardbeyan (Ext. 3) recorded on 22.10.1989 at 6.30 A.M., is that on 21.10.1989 at about 8-9 P.M. deceased Jugeshwar Rai, uncle of the informant Bindeshwar Rai (P.W. 9), resident of village Kewata Tole Kagpur had gone to Jamuna Tad to arrange labourers for agriculture purposes. Before he could return, the informant Bindeshwar Rai (P.W. 9) learnt that his uncle was being assaulted by the appellants and one Ajablal Rai near the house of Saryug Das situate in the easters part of the Tola after tying him with black berry tree and bamboo clump with jute rope. Having come to know about the aforesaid information, the informant Bindeshwar Rai (P.W. 9) went towards the eastern end of the Tola alongwith Ramchandra Rai (not examined), Thakkar Rai (not examined), Triveni Rai (not examined) and Damodar Rai (not examined) and saw that his uncle was tied with the biakberry tree in standing posture and the appellants, on the exhortation of Ajablal Rai, were assaulting him with lathi. The informant Bindeshwar Rai (P.W. 9) and others, who accompanied him, forbade the appellants not to assault his uncle, but they did not listen to the request and continued with the assault until he died whereafter they went away leaving his dead body. It is further stated in the fardbeyan that while the assault was on, the informant Bindeshwar Rai (P.W.9) and others did not take steps to inform the police as it was late in the night. In the morning, informant sent his uncle Ramdeo Rai (P.W. 5) to the house of the Dafadar to inform the police station about the occurrence. Before the Dafadar could come back, the informant Bindeshwar Rai (P.W. 9) saw a police vehicle coming in the village then he approached the police personnel in the vehicle and brought them to the place of occurrence. It is further stated in the fardbeyan (Ext. Before the Dafadar could come back, the informant Bindeshwar Rai (P.W. 9) saw a police vehicle coming in the village then he approached the police personnel in the vehicle and brought them to the place of occurrence. It is further stated in the fardbeyan (Ext. 3) that the cause of occurrence is enmity between the deceased and the appellants, including the accused Ajablal Rai as a proceeding under Section 107 of the Code of Criminal Procedure and Title Suit was pending between them. 3. During the investigation, which commenced soon after recording of fardbeyan (Ext. 3), only the informant and his uncle Ramdeo Rai (P.W. 5) were examined by the Investigating Officer and for reasons not disclosed in the case diary others, namely, Ramchandra Rai, Thakkan Rai, Triveni Rai and Damodar Rai named in the fardbeyan as those who had witnesses the assault on the deceased were not examined by the investigating Officer. The investigating Officer, however, examined other 14 witnesses in support of the prosecution case, who were not named in the fardbeyan as witnesses of the assault, including Mala Devi who claimed to have married the deceased after the death of her first husband, Sukho Rai, the uncle of the appellants and on the basis of those statements, charge sheet was submitted on 10.6.1990 for the offences under Sections 302/34 of the Indian Penal Code against the appellants and Ajablal Rai. 4. While the aforesaid case remained under investigating, Mala Devi aforesaid filed a complaint case, bearing No. 518 of 1989 (Ext. E) on 26.10.1989 asserting that the deceased Jugeshwar Rai was done to death in the courtyard of her house situate in village Kewata, Tola Kagpur, Police Station Dalsingsarai, District Samastipur on 21.10.1989 in between 9.00-10.00 P.M. by M/s Ramdeo Rai (RW. 5), Deo Narain Rai (P.W. 8), Bindeshwar Rai (P.W. 9), Damodar Rai and Triveni Rai as they did not approve her second marriage with the deceased Jugeshwar Rai. 5), Deo Narain Rai (P.W. 8), Bindeshwar Rai (P.W. 9), Damodar Rai and Triveni Rai as they did not approve her second marriage with the deceased Jugeshwar Rai. On the fateful night when the deceased was in her courtyard, the members of the prosecution party of the present case came there and assaulted him with Musal (thrashing pestal) and lathi danda and when she attempted to protect him, she was caught by Ramdeo Rai who pulled her hairs and threw her down and gave blow on her person with fists and kicks and then she was confined in the house of Ramdeo Rai, wherefrom in the morning she was removed to the house of his sister in village Rasulpur where she was kept confined for about three days until Wednesday the 25.10.1989 when she somehow managed to escape in the morning on the pretext of attending the call of nature, whereafter she came to her house at Kewata, Tola Kagpur where she learnt that Jugeshwar Rai died on account of the aforesaid assault. It also appears from the said complaint that the complainant after having learnt about the death of her second husband Jugeshwar Rai, went to the Police Station to lodge a case but the police refused to register any case against the prosecution party of the present case as they were in their collusion and then Mala Devi had no option but to file the aforesaid complaint case on 26.10.1989 in support whereof she also examined herself on solemn affirmation on 26.10.1989 itself. 5. In support of the prosecution case, prosecution has examined nine witnesses, out of whom P.Ws. 3, 5, 6, 8 and 9 are the eye witnesses and P.Ws. 1.2 4 and 7 are formal witnesses as P.Ws. 1, 2 and 4 have proved Ext. 1 formal First Information Report, Ext. 2 endorsement of S.I., M.P. Yadav on the fardbeyan, and the fardbeyan, Ext. 3. P.W. 7 has claimed that he signed the seizure list and inquest report prepared by the Investigating Officer. 1.2 4 and 7 are formal witnesses as P.Ws. 1, 2 and 4 have proved Ext. 1 formal First Information Report, Ext. 2 endorsement of S.I., M.P. Yadav on the fardbeyan, and the fardbeyan, Ext. 3. P.W. 7 has claimed that he signed the seizure list and inquest report prepared by the Investigating Officer. Out of the aforesaid five eye witnesses, only two, namely, Ramdeo Rai (P.W. 5) and the informant Bindeshwar Rai (P.W. 9) are named in the fardbeyan, but from the contents of the fardbeyan, however, it does not appear that Rameo Rai (P.W. 5) is an eye witness of the assault as in the fardbeyan it is only stated that in the morning he was sent to the house of Dafadar to inform the police station about the occurrence. From the evidence of the Investigating Officer, Court Witness No. 2 also, it appears that Ramdeo Rai (P.W. 5) had not supported/corroborated the prosecution case before him. Remaining eye witnesses P.Ws. .3, 6 and 8 were not examined in support of the prosecution case before the Investigating Officer as it appears from his evidence recorded in court. 6. Defence has also examined five witnesses, out of whom D.Ws. 3 to 5 are formal witnesses as they have proved written statement of Mala Devi in Title Suit No. 82 of 1989 (Ajablal Rai vs. Mostt. Mala Devi & Ors.), plaint of Partition Suit No. 211 of 2002 (Shyamwati Devi, daughter of Jugeshwar Rai vs. Deo Narayan Rai & Ors.) the members of the prosecution party), the affidavit of Partition Suit (Ext. C/1) and Complaint petition of Mala Devi (Ext. E). Besides D.W.1 Mala Devi and D.W. 2 Ramchandra Rai, have been named as a witness in charge sheet and the First Information Report itself as an eye witness of the occurrence/assault, but they have been examined in support of defence case. 7. The Medical Officer, who conducted autopsy on the person of the deceased and the Investigating Officer who recorded the fardbeyan (Ext. 3) as also conducted investigation and submitted charge sheet, have been examined as Court Witness Nos. 1 and 2 respectively. 8. The trial court having considered the prosecution evidence laid before it, including the evidence of the Medical Officer and the Investigating Officer, Court Witness Nos. 3) as also conducted investigation and submitted charge sheet, have been examined as Court Witness Nos. 1 and 2 respectively. 8. The trial court having considered the prosecution evidence laid before it, including the evidence of the Medical Officer and the Investigating Officer, Court Witness Nos. 1 and 2, accepted the prosecution case and held the appellants guilty of the offences under Section 302/34 of the Indian Penal Code and awarded the sentence of death. 9. Learned counsel for the appellants has assailed the finding of guilt recorded by the trial court as devoid of merit as according to him P.Ws. 3, 5, 6, 8 and 9 should not have been relied upon in support of the prosecution case as they themselves had admitted their close relationship with the deceased and are highly interested in the success of the prosecution case. Besides, RW. 3 Sugia Devi has also admitted that she works as a maid in the house of the informant. In this connection learned counsel for the appellants has also pointed out that besides the informant Bindeshwar Rai (RW. 9), none of the aforesaid prosecution witnesses examined themselves in support of the prosecution case before the Investigating Officer which fact was candidly admitted by the Investigating Officer in his evidence and according to him P.Ws. 3, 5, 6 and 8 ought not to have been relied upon in support of the prosecution case by the court below. Learned counsel has assailed the evidence of the informant Bindeshwar Rai (RW. 9) on the ground that he being the solitary eye witness, who supported the prosecution case before the police as also in Court, should not have been relied upon as he being the nephew of the deceased was highly interested in the success of the prosecution case as he had an evil eye over the property of the deceased. The court below should have looked for some corroboration of his evidence from other eye witnesses may be relations, who were consistent in their stand during the investigation as also in court. 10. Learned counsel for the appellants assailed the veracity of the prosecution case on the basis of the evidence of the two Court Witnesses, namely, the Medical Officer and the investigating Officer, CWs. 10. Learned counsel for the appellants assailed the veracity of the prosecution case on the basis of the evidence of the two Court Witnesses, namely, the Medical Officer and the investigating Officer, CWs. 1 and 2, as according to him the Medical Officer, who conducted the autopsy on the dead body of the deceased did not support the prosecution case as it is said that the deceased was lying supine his hands and legs tied with the rope and the accused persons were assaulting the deceased with lathi, but the doctor found injuries on the chest, which was never possible in such posture. With reference to the evidence of C.W. 2, learned counsel for the appellants assailed the very genesis of the prosecution case and pointed out that non-production of Sanha entry, inquest report, seizure list, dead body chalan and material exhibits as also by withholding the First Information Report named witnesses from coming to court, the prosecution has suppressed the truth from coming out, adverse inference should be drawn in terms of the provisions of Sub-Section (g) of Section 114 of the Evidence Act. 11. Learned counsel for the appellants further, with reference to the evidence of two defence witnesses, D.Ws. 1 and 2, has submitted that this Court should place reliance on the evidence of the defence witnesses as D.W. 1, Mala Devi is a charge sheet witness and D.W. 2 is a witness who according to the fardbeyan has seen the assault and the court below erred in ignoring their testimony recorded in court room by misconstruing the statement of D.W. 2 in paragraph 20 of his deposition recorded in court room, as it appears from paragraph 33 of the judgment 12. Learned counsel further submitted that by placing reliance on the statement of Mala Devi and her children recorded in paragraph nos. 20, 31, 32 and 33 of the case diary, as it appears from paragraph no. 30, 31 and 34 of the judgment, the court below has erred in law as according to the learned counsel reliance over the statement of Mala Devi and her children recorded in paragraph nos. 20, 31, 32 and 33 of the case diary is wholly contrary to the provisions contained in proviso to Section 162 of the Code of Criminal Procedure. 20, 31, 32 and 33 of the case diary is wholly contrary to the provisions contained in proviso to Section 162 of the Code of Criminal Procedure. In support of the said contention, learned counsel has relied on the Judgment of this Court in the case of Sarju Singh vs. Mahendra Pratap Singh, reported in AIR 1964 Patna 561. 13. Learned counsel for the appellants further assailed the findings of the trial court on the ground that the conduct of the prosecution witnesses is absolutely unnatural as they being the eye witnesses did not attempt to save, the deceased even when the informant and others had seen the assault being made on the deceased. In this connection, it is further submitted that police station being 4-5 kilometres away from place of occurrence, none of the prosecution witnesses rushed to the police station during the night itself. This circumstance alone according to the learned counsel is absolutely unnatural on the part of the prosecution. In order to highlight the unnatural conduct of the prosecution, learned counsel relied upon the two judgments of the Hon ble Supreme Court in the case of Anil Phukan vs. State of Assam, reported in AIR 1993 Supreme Court 1462, paragraph 5 and in the case of Mahraj Singh vs. The State of U.P. reported in (1994) S.C.C. (Crl.) 1390, paragraph nos. 14 and 15. 14. Learned counsel also submitted that Dafadar who went to the police station to call the police, was not examined to disclose the fact as to when he went to the police station and what was the message recorded in the station diary and when the police arrived at the place of occurrence. 15. Learned counsel for the appellants further questioned the inability of the prosecution to produce station diary entry, inquest report, seizure list, the dead body chalan and material exhibit (rope). According to him for the failure to provide the aforesaid document reason is obvious as those documents would have disproved the prosecution version. In this connection, he relied upon the judgment of this Court in the case of Mangru Singh vs. State of Bihar, reported in 1996 B.L.J. 699 [: 1996(2) PLJR 251 ]. According to him for the failure to provide the aforesaid document reason is obvious as those documents would have disproved the prosecution version. In this connection, he relied upon the judgment of this Court in the case of Mangru Singh vs. State of Bihar, reported in 1996 B.L.J. 699 [: 1996(2) PLJR 251 ]. He further questioned the inability of the prosecution to examine independent and the First Information Report named witnesses, as according to him had the First Information Report named witnesses were examined, they would have divulged the true story which would have proved fatal to the prosecution case. In this connection, he relied upon the judgment of this Court in the case of Madan Gopai Rai vs. State of Bihar, reported in 2005 BLJ 550 [: 2005(3) PLJR 514 ], of Ramashrit Ram vs. State of Bihar, reported in (1982) S.C.C. (Crl.) 63 [: 1982 PLJR (SC)27], Sudarshan Ahir vs. State of Bihar, reported in 1987 BLJ 579 (S.C.) [: 1987 PLJR (NOC)49] and Mahraj Singh vs. State of U.P., reported in (1994) S.C.C. (Crl.) 1390. 16. Besides, learned counsel for the appellants also highlighted the delay in drawing up the formal First Information Report and its receipt in the court concerned as according to him the fardbeyan was recorded on 22.10.1989 at 6.30 A.M., the formal First Information Report was drawn on 22.10.1989 at 11.30 A.M. and dispatched on the same day i.e. 22.10.1989 through special messenger, but was received in the court, which is hardly at a distance of 15-20 kilometres, on 24.10.1989 and thus according to him these facts make the entire prosecution story suspicious and in this connection he relied on the following judgments: a. AIR 2002 S.C. 175 (Thanedar Singh vs. State of M.P.) para 2 and 5 b. (2005) S.C.C. (Crl.) 1225 (State of A.P. vs. K. Patnam), para 9 c. (1994) S.C.C. (Crl.) 1390 (Mahraj Singh vs. State of Bihar), para 12 d. 1994 BBC J 116 (SC) Arjun Ma-rik vs. State of Bihar, para 22, 23, 24,26. 17. On the other hand, learned State counsel has refuted the aforesaid submission, with reference to the statement recorded in fardbeyan (Ext. 17. On the other hand, learned State counsel has refuted the aforesaid submission, with reference to the statement recorded in fardbeyan (Ext. 3) itself and pointed out that the deceased was tied with black berry tree and bamboo bar with rope in standing posture and was being assaulted by the appellants with lathi and the informant and others named in the fardbeyan repeatedly appealed to the appellants to stop the assault, but they did not pay any heed to the request and continued with the assault until the deceased lay supine on the earth and i.e. how he has explained the conduct of the prosecution party as also the injuries caused on the chest, ribs and other parts on the person of the deceased. 18. In regard to the failure of the prosecution to produce Mala Devi, charge sheet witness and her children as witnesses in support of the prosecution case, he has referred to the petition filed by the prosecution dated 20.2.2002 as thereunder it was categorically stated that Mala Devi and her children have been gained over and as such they have not been produced in support of the prosecution case. In this regard he has also referred to the contradiction between the statement made in the complaint petition dated 26.10.1989 and the statement of Mala Devi on solemn affirmation on 26.10.1989 itself as according to the complaint petition when Mala Devi was released from the captivity of Ramdeo Rai in his sisters house at village Rasulpur, she rushed to her house at village Kewata, Tole Kagpur on Wednesday the 25.10.1989 in the morning and having learnt from her minor children about the death of her second husband, she went to the police station for lodging the case, but the officer-in-charge and others at the police station in collusion with the prosecution party, did not record her version and then she was forced to lodge the complaint case on 26.10.1989, whereas in her statement on solemn affirmation recorded on 26.10.1989 itself she has categorically stated that when she learnt about the death of her second husband she never approached the police station and straightway came to the court for filing the complaint case. This inherent contradiction in the statement of Mala Devi, according to the learned counsel for the State, does not inspire any confidence in her statement and according to him her statement is only a device to defeat the prosecution and should not be accepted. 19. Learned counsel for the State further submitted that the fardbeyan was recorded on 22.10.1989 at 6.30 A.M., whereafter formal First Information Report was drawn up at 11.30 A.M. and on the same day it was dispatched through special messenger for being received in the court, but true it is the same was received in the court on 24.10.1989, the said circumstance alone cannot defeat the prosecution case as the statement made in the fardbeyan is duly corroborated by the informant when he is examining himself in court as P.W. 9 and the said statement also finds supports from the statement of the two official witnesses, namely, the Medical Officer and the Investigating Officer and in this background, according to the learned State counsel there is no inherent defect in the prosecution story and its proof in the court. 20. In regard to the non-production of the station diary entry, seizure list, inquest report, dead body chalan and the material exhibits, learned counsel for the State, with reference to the evidence of the Investigating Officer, pointed out that details of the sanha entry alongwith time of its recording has been duly indicated in the evidence of the Investigating Officer and the Investigating Officer has further categorically denied the suggestion of the defence that the inquest report and seizure list were never prepared and thus in the light of the said denial failure of the prosecution to produce sanha entry, inquest report, seizure list and the material exhibit in the court during the trial should not affect the prosecution case as the factum of death being admitted by the parties, non-production of those documents is hardly of any relevance. 21. Having heard learned counsel for the appellants and the State and having perused the evidence of the informant (RW. 21. Having heard learned counsel for the appellants and the State and having perused the evidence of the informant (RW. 9), we are satisfied that when he learned about the assault on his deceased uncle on 21.10.1989 at about 8-9 P.M. he alongwith witnesses named in the First Information Report rushed towards eastern part of the Tola, where he saw his uncle tied with the black berry tree and bamboo bar in standing posture and was being assaulted by the appellants with lathi. Having seen the assault, informant requested the appellants to forgive his uncle, but they did not listen to the request and continued with the assault until his uncle succumbed to the injuries, whereafter the appellants went away. In the early morning, informant sent his another uncle, P.W. 5 to the house of Dafadar to inform the police station about the occurrence. Before Dafadar could comeback, informant saw a police vehicle coming in the village and then he approached the police personnel in the vehicle and brought them to the place of occurrence, whereafter fardbeyan was lodged and the investigation commenced. The evidence of the informant that the deceased was tied with the black berry tree and bamboo bar in standing posture and was being assaulted with lathi until the deceased lay supine on the earth, is fully corroborated by the evidence of the Medical Officer (C.W.1), who has found as many as seven bruise injuries, including multiple bruise and one lacerated wound and fracture of 5th to 10th rib on the right side. The injuries clearly demonstrate that the deceased was assaulted by the hard blunt substance like lathi causing fracture from 5th to 10th rib. The nature of injuries on the deceased fully corroborates the prosecution story that deceased was tied with the bamboo bar in standing posture and he was assaulted from different sides causing fracture of the ribs, whereafter he lay supine on the ground. 22. The assailants, who were the resident of the eastern part of the tola itself, continued to abscond until one of them, namely, Bijay Rai, Appellant No. 4 was arrested on 28.3.1990. Appellants 1 to 3 and 5 continued to abscond even after completion of the investigation and submission of charge sheet on 11.6.1990 in which they were shown as absconders. The assailants, who were the resident of the eastern part of the tola itself, continued to abscond until one of them, namely, Bijay Rai, Appellant No. 4 was arrested on 28.3.1990. Appellants 1 to 3 and 5 continued to abscond even after completion of the investigation and submission of charge sheet on 11.6.1990 in which they were shown as absconders. The circumstance that the appellants continued to abscond even after counter version was lodged by Mala Devi on 26.10.1989 by filing complaint petition (Ext. E) becomes relevant under Section 8 of the Evidence Act and clearly points the needle of guilt towards them. 23. The counter version lodged by Mala Devi in her complaint dated 26.10.1989 (Ext. E) that deceased was done to death in her courtyard on 21.10.1989 in between 9-10 P.M. by M/s Ramdeo Rai (RW. 5), Deo Narayan Rai (RW 8), informant Bindeshwar Rai (P.W 9), Damodar Raiand Triveni Rai, as they did not approve her second marriage with the deceased and the deceased was done to death when on the fateful night he was in her courtyard by the aforementioned members of the prosecution party of the present case who came there and assaulted him with Mushai she attempted to protect him, she was caught by Ramdeo Rai, who pulled her hairs and threw her down and gave blow on her person with fists and kicks and then during the night she was confined in the house of Ramdeo Rai, wherefrom in the morning she was removed to the house of his sister in village Rusulpur where she remained for about three days until 25.10.1989 when she managed to escape on the pretext of attending the call of nature and came to her house at village Keota Tole Kagpur where she learnt from her children from the first husband that Jugeshwar Rai died on 21.10.1989 itself on account of aforesaid assault and then she went to the police station but the officer-in-charge refused to register the case then she filed the complaint on 26.10.1989, does not inspire confidence as in her statement recorded on solemn affirmation on 26.10.1989 itself she had categorically stated that when she learnt from her children from the first husband about the death of her second husband, she never approached the police station and straightway came to the court for filing the complaint case. This inherent contradiction between the stand taken in the complaint petition and the statement made on solemn affirmation does not inspire confidence in the counter version of the occurrence narrated by her. 24. The falsehood in the complaint of Mala Devi that she first approached the officer-in-charge and when he refused to register the case then she approached the criminal court for flinq the complaint, makes her entire version vulnerable and doubtful, which is further reinforced in the light of the fact that the appellants continued to abscond during the investigation conclusively established that they having committed the offence began to abscond until Bijay Rai, Appellant No. 4 was arrested on 28.3.1990 and other appellants surrendered on 7.9.1990. 25. The factum of death on 21.10.1989 in between 8-10 P.M. in the night having been admitted by the parties, there is hardly any delay in lodging the fardbeyan on 22.10.1989 at 6.30 A.M. and drawal of the formal First Information Report on 22.10.1989 at 11.30 A.M. In the circumstances, delay in the receipt of the formal First Information Report in the Court on 24.10.1989 as also failure of the prosecution to produce sanha entry, inquest report and the material exhibit does not shake the veracity of the prosecution case, which is established to the hilt on the basis of the evidence of the informant (RW. 9), the Medical Officer (C.W. 1) and the Investigating Officer (C.W. 2). At this stage itself, it is appropriate to notice that by filing a petition, prosecution has explained the circumstances in which other witnesses either named in the First Information Report or included in the charge sheet, including Mala Devi could not be examined as they came in collusion with the appellants. 26. We are satisfied about the veracity of the evidence of the informant (RW. 9), which is fully corroborated by the Medical Officer and Investigating Officer (CWs. 1 and 2) and on the basis of the testimony of the aforesaid three witnesses, we mainain the conviction of the appellants under Sections 302/34 of the Indian Penal Code, however, keeping in view the fact that the appellants assaulted the deceased with lathi, a traditional weapon, we hold that the case does not appear to be one in the nature of the rare of the rarest cases, and, accordingly, we convert the death sentence into one under Rigorous Imprisonment for life. 27. 27. With the aforesaid modification in the sentence, the appeal is dismissed and Death Reference No. 1 of 2003 is rejected. I.P.Singh, J. 28 I agree.