PRAVENDU NARAYAN SINHA, J. ( 1 ) THIS appeal is directed against the judgment and order of conviction passed by the learned Additional Sessions Judge, 3rd Court, Suri in sessions Trial No. 1 of August, 1999 (Sessions Case No. 81 of 1993) thereby sentencing the appellants to suffer imprisonment for life and to pay a fine of Rs. 2,000/- each in default to suffer R. I. for six months each for the offence under sections 302/149 of the Indian Penal Code (in short I. P. C. ). The appellants were also convicted under Section 148 of the I. P. C. but no separate sentence was imposed on them for the said offence. ( 2 ) THE prosecution case, in short, is that on 8. 5. 1993 at about 5. 30 p. M. Netai Pada Bauri left his house for taking bath in a pond known as 'baripukur'. While he was proceeding to the said pond through a field, the appellants namely, Shyamapada Bauri, Anath Bauri, Sanatan Bauri @ Sonai, juddha Bauri, Krishna Kanta @ Krishna Bauri, Ram Chandra @ Rampada Bauri and one Harachand Bauri forming an unlawful assembly attacked Netai Bauri out of previous grudge. The accused persons assaulted Netai Bauri with lathi, tangi, 'kural' i. e. axe as a result of which he sustained severe bleeding injury on different parts of his body and fell down on the said field. Sadhu Bauri (since deceased), Lakur Ghosh @ Lagar Ghosh (P. W. 4), Bablu Bauri (P. W. 3) and many others of village Saluka saw the incident. The injured Netai Bauri was brought to Patel Nagar PHC and from there he was transferred to Suri Sadar hospital. Md. Golam Mortuja (P. W. 1) lodged the FIR (ext. 1) and on the basis of it Mohammad Bazar P. S. Case No. 28 dated 8. 5. 93 was started. During investigation the injured Netai Bauri expired at about 12. 15 at night, i. e. 00. 15 a. M. of 9. 5. 93, and after his death Section 302 of I. P. C. was added. After investigation the police submitted charge sheet and the trial that followed ended in conviction of the six appellants mentioned above. The accused Harachand bauri expired during pendency of the case and did not face the trial. 15 a. M. of 9. 5. 93, and after his death Section 302 of I. P. C. was added. After investigation the police submitted charge sheet and the trial that followed ended in conviction of the six appellants mentioned above. The accused Harachand bauri expired during pendency of the case and did not face the trial. ( 3 ) IN order to prove its case the prosecution examined as many as 13 witnesses namely, P. W. 1 Md. Golam Mortuja (the informant), P. W. 2 Madhai karmakar, P. W. 3 Bablu Bauri, P. W. 4 Lakur @ Lagar Ghosh, P. W. 5 Smt. Genu Bauri (wife of deceased Netai Bauri), P. W. 6 Sourendra Nath Garai, P. W. 7 Samir Bauri, P. W. 8 Gouri Sankar Dey, P. W. 9 Sakti Pada Dey, P. W. 10 Md. Najimuddin, P. W. 11 Chandan Mukherjee, P. W. 12 Bimalendu Singha and P. W. 13 Dr. Ambarish Gupta (post mortem surgeon ). Out of the aforesaid 13 witnesses p. W. 1, P. W. 2, P. W. 3 and P. W. 7 are witnesses of occurrence. P. W. 4 was also a witness of occurrence according to prosecution case but, he did not support the prosecution case in his evidence and was declared a hostile witness. P. W. 5 came to place of occurrence hearing the hue and cry and saw her husband in injured condition and learnt names of assailants from her husband. P. W. 6 is a witness of seizure. P. W. 8, P. W. 9 and P. W. 13 are the medical officers out of which P. W. 8 is the medical officer of Suri hospital, who admitted injured Netai into the said hospital on 8. 5. 93 at 8. 55 P. M. P. W. 9 is the medical officer of Mohammad Bazar BPHC who treated the injured Netai Bauri first when the injured was produced before him and he instructed the patient party for shifting the injured to Suri hospital for better treatment. P. W. 13 is the autopsy surgeon who conducted the post mortem examination on the dead body of deceased Netai Bauri on 9. 5. 93. ( 4 ) P. W. 10 is a home guard who brought the dead body of Netai Bauri to Suri hospital morgue for post mortem examination. P. W. 13 is the autopsy surgeon who conducted the post mortem examination on the dead body of deceased Netai Bauri on 9. 5. 93. ( 4 ) P. W. 10 is a home guard who brought the dead body of Netai Bauri to Suri hospital morgue for post mortem examination. P. W. 11 was the then o. C. , Mohammad Bazar P. S. who received the written complaint (ext. 1) from p. W. 1 Md. Golam Mortuja and started Mohammad Bazar P. S. Case No. 28 dated 8. 5. 93 and filled up the formal FIR (ext. 8) and endorsed the case to Sub-Inspector of Police N. B. Chatterjee (not examined) for investigation. P. W. 12 is a police officer who was attached to Suri P. S. at the relevant time and he held inquest on the dead body of Netai Bauri at Suri Hospital on 9. 5. 93 and prepared the inquest report (ext. 3 ). ( 5 ) BEFORE we enter into the points raised by the learned Advocate for the appellants in this appeal it would be fruitful to discuss the evidence first. P. W. 1, the informant in his evidence stated that he did not witness the incident of murder, but he heard about it from the deceased himself. The FIR narrates the prosecution story in such a manner as if P. W. 1 was the eye witness. Be that as it may, the FIR being not a substantive piece of evidence we are to rely on the evidence stated by the witness in Court. P. W. 1 stated that on query netai disclosed that Juddha Bauri, Krishna Bauri, Haradhan Baui are the persons who assaulted and injured him. He (P. W. 1) came to the place of occurrence and found injured Netai with bleeding and blood was oozing out from his head, hand and other parts of the body. Netai was wearing an old underwear and one old napkin and the wearing apparels were also stained with blood. At the place of occurrence he found Bablu Bauri, Sadhu Bauri, Rishipada Bauri (elder brother of Netai), Genu Bala (wife of Netai) and other persons. They took away injured netai to Patel Nagar hospital and the doctor after examining him advised for shifting the injured to Suri Hospital. Netai was thereafter transferred to Suri hospital. At the place of occurrence he found Bablu Bauri, Sadhu Bauri, Rishipada Bauri (elder brother of Netai), Genu Bala (wife of Netai) and other persons. They took away injured netai to Patel Nagar hospital and the doctor after examining him advised for shifting the injured to Suri Hospital. Netai was thereafter transferred to Suri hospital. Madhai Master (Karmakar) wrote out the FIR and he signed in it. Accused persons are agnates of Netai. Prior to the occurrence there was dispute between the parties over a bamboo grove. In his cross examination he disclosed that when he came to the place of occurrence 8/10 persons already were present there. He found Netai with bleeding injuries but he was conscious and was capable of talking. Netai told him the names of assailants at place of occurrence in presence of Bablu Bauri and Sadhu Bauri. After the amicable settlement there was no dispute between Netai and his agnates. ( 6 ) P. W. 2 Madhai Karmakar in his evidence stated that on 8. 5. 93 at about 5 P. M. five persons came to his house and informed him that Netai was murdered. He proceeded towards the house of Netai and on the way found that netai was being carried towards police station. Netai had bleeding injuries all over his body. On being asked Netai told that Anath Bauri, Ram Bauri, Juddha bauri, Sonai Bauri and others assaulted him by axe, tangi etc. He, P. W. 1, sadhu and others took away injured to Patel Nagar hospital and the doctor advised them to take away the injured to Suri Hospital as condition of the patient was grave. Thereafter, they carried away Netai to Suri Hospital where he was admitted. He informed the O. C. of the matter and scribed the FIR according to direction of P. W. 1. There was long-standing dispute between netai and the accused persons over the bamboo grove. They settled the dispute between the Netai and the accused persons at the intervention of police, and thereafter, the incident took place. His cross examination reveals that he got the information at about 5 P. M. The place of occurrence was about 50 yards from the new house of Netai and about 50 yards from the 'baripukur'. When netai gave name of the assailants to him Sadhu Bauri and wife of Netai were present. His cross examination reveals that he got the information at about 5 P. M. The place of occurrence was about 50 yards from the new house of Netai and about 50 yards from the 'baripukur'. When netai gave name of the assailants to him Sadhu Bauri and wife of Netai were present. He did not inform the police about his talk with Netai regarding name of the assailants. ( 7 ) P. W. 3 Bablu Bauri in his evidence stated that Shyamapada, Ram, krishna, Haradhan assaulted Netai by lathi, axe, tangi etc. He, P. W. 1, Sadhu bauri, Rishi Bauri, Samir Bauri and other villagers rushed to the place of occurrence. Netai fell down on the land sustaining bleeding injury. They took away the injured on a trolley to Patel Nagar hospital. The doctor advised them to shift the injured to Suri hospital as his condition was serious. The accused persons were agnates of Netai and there was dispute between Netai and the accused persons concerning bamboo grove. His cross examination reveals that he got the information at about 4. 30/5 P. M. He gave name of four assailants to police at hospital. He saw the assault on Netai from road. The place of occurrence was about 500 cubits from the place where he was standing when he first saw the incident. Thereafter, he came forward and witnessed the occurrence from a distance of about 150 cubits. The assault continued for about 2/3 minutes. Nobody was present by his side. When he reached the place of occurrence Netai was lying on the ground and he was conscious. Netai gave the name of assailants to Rishi. He denied the defence suggestion that there was dispute between Netai and the villagers concerning 'balak bhojon' i. e. giving meal to boys over 'dharmapuja' i. e. a kind of festival. ( 8 ) P. W. 4 was declared hostile as he did not support the prosecution case in all respects. His evidence reveals that Netai Bauri was murdered and at the relevant time he was easing himself by the side of 'baripukur' when Hara pushed him and he fell down and thereafter he did not see any other person. He stated before police that on 8. 5. His evidence reveals that Netai Bauri was murdered and at the relevant time he was easing himself by the side of 'baripukur' when Hara pushed him and he fell down and thereafter he did not see any other person. He stated before police that on 8. 5. 93 while Netai was going to 'baripukur' he was following him and Netai was assaulted by the accused persons as a result of which Netai sustained bleeding injuries. Prior to the incident Netai had dispute with accused persons over possession of bamboo grove. Netai fell down on the ground and the villagers took away injured Netai to Patel Nagar PHC. Subsequently, he stated that he did not state to police that the accused persons assaulted Netai over dispute concerning bamboo grove for which he was declared hostile by the prosecution. In cross examination by defence he stated that he did not state to police as to who assaulted Netai. Even in the cross examination by defence he stated that a few days prior to the incident there was dispute between Netai and Madhai over bamboo grove. ( 9 ) P. W. 5 is the wife of deceased Netai who in her evidence stated that on the date of incident her husband returned home from his place of work and went to take bath in a tank named 'baripukur' which was to the west of their house. It was then about 5 P. M. and her husband was wearing old underwear and a napkin. She heard hue and cry which was coming from the side of the tank and she rushed towards the tank and found that her husband was lying on ground near the tank with injuries and profuse bleeding. The land or the field over which her husband was lying belonged to Golam Mortuja. When she asked her husband about the matter he told her that Shyam Bauri, Ram Bauri, Krishna bauri, Hara Bauri, Juddha Bauri, Sonai Bauri assaulted him by axe, katari, tangi and lathi. She identified all the accused persons in Court and stated that accused Haradhan @ Hara Bauri is dead. Her evidence also reveals that Rishi bauri and Sadhu Bauri, the two witnesses are also dead. Her husband was taken to Mohammad Bazar P. H. C. but she did not accompany her husband to the police station. She identified all the accused persons in Court and stated that accused Haradhan @ Hara Bauri is dead. Her evidence also reveals that Rishi bauri and Sadhu Bauri, the two witnesses are also dead. Her husband was taken to Mohammad Bazar P. H. C. but she did not accompany her husband to the police station. Next morning she learnt that her husband had expired at Suri hospital. After she reached her husband, Bablu, Samir, Golam Mortuja and lagar arrived at that place. Her husband was taken on the road by the witnesses and from there he was taken to Mohammad Bazar P. H. C. on a trolley. She denied the defence suggestion that there was dispute between her husband and villagers concerning 'dharmaraj' festival. She stated that her husband wanted to say something but she restrained her husband. The learned Advocate for the appellants wanted to impress upon us that this would show that the deceased did not make any statement disclosing name of the assailants. We are not convinced at all with this submission and in our opinion evidence of P. W. 5 disclosing that she restrained her husband from talking cannot be interpreted in the sense as if the deceased did not disclose name of the assailants to her and others. It indicates that P. W. 5 restrained her husband from talking much considering his serious condition. ( 10 ) P. W. 6 is a witness of seizure of blood stained earth and controlled earth. He heard about the incident from wife of Netai Bauri. He learnt the names of assailants from wife of Netai Bauri. In cross examination he stated that the place of occurrence was to the east of 'baripukur'. He is a supporter of a particular political party and deceased Netai was also a supporter of that party. ( 11 ) P. W. 7 in his evidence stated that at the relevant time he was working in the field of Karali Garai when he heard the hue and cry raised by deceased Netai Bauri from the side of 'baripukur'. He rushed to that place and found that accused Shyam Bauri, Ram Bauri, Krishna Bauri and Haradhan Bauri were assaulting Netai Bauri by tangi, axe and lathi. Netai sustained bleeding injury on his person. He found Netai and the accused persons in the field of golam Mortuja and Soukat All on the eastern side of 'baripukur'. He rushed to that place and found that accused Shyam Bauri, Ram Bauri, Krishna Bauri and Haradhan Bauri were assaulting Netai Bauri by tangi, axe and lathi. Netai sustained bleeding injury on his person. He found Netai and the accused persons in the field of golam Mortuja and Soukat All on the eastern side of 'baripukur'. He, Bablu bauri, Rishi Bauri, Sadhu Bauri and others took away Netai to the road side. From there Netai was taken to Patel Nagar hospital on a trolley. The doctor of that hospital referred Netai to Suri Sadar hospital as his injury was serious. Netai was taken to Suri hospital but he did not go to Suri. Before incident there was dispute between Netai and accused persons concerning bamboo grove. His cross examination reveals that he was examined by the Investigating Officer (in short I. O.) 20/25 days after the incident as he was not present on the first day of visit by police. ( 12 ) P. W. 8 is the medical officer who was attached to Suri Sadar Hospital. On 8. 5. 93 he examined Netai Bauri who was referred to that hospital from Patel nagar PHC. Netai Bauri was admitted at Suri hospital at 8. 55 P. M. On examination he found head injury and condition of the patient was so serious that without further examination the treatment was started to save his life. Ultimately, the patient died at about 12. 15 at night. He stated that the injury which he found on the head of the patient was sufficient to cause death of the patient. The injury may be caused due to assault by tangi, axe etc. In cross examination he made a casual statement that such type of head injury may be caused due to contact with heavy blunt object. ( 13 ) P. W. 9 is the medical officer who was attached to Mohammad Bazar bphc on 8. 5. 93. On that day at 7 P. M. he examined Netai Bauri of village saluka and on examination he found multiple cut injuries over the scalp: a) left parietal 3" X 1" X 1/4; b) right parietal 4" X 1" X 1/4 and also 3" X 1" X1/4"; c)midline about 2" above 4" X 1" X 1/4". He also found injuries on right lateral eye brow 2" X 1" X 1/4". He also found injuries on right lateral eye brow 2" X 1" X 1/4". There was injury on left arm which was deep seated penetrated injury with fracture, fracture on left forearm. On right arm he found deep seated penetrated injury with fracture. Right forearm had deep seated penetrated injury with fracture. P. W. 9 stated that the patient was brought by one Rishi Bauri. According to statement of the attendant of patient the patient was assaulted by Shyam Bauri, Haradhan Bauri, Kisan Bauri, Ram Bauri, Raksha bauri, Ananta Bauri and others with tangi and sharp instruments. The injury report prepared by him was marked ext. 6. ( 14 ) HIS cross examination reveals that in the injury report it was not mentioned by him as to who gave the statement to him regarding history of assault. In the injury report it was mentioned by him that patient was not in a position to speak and patient was semi-unconscious. He stated that in respect of injury No. 1 he did not mention whether it was incised wound or incised looking wound. The other injuries might have been caused by coming into contact with blunt substance. ( 15 ) P. W. 13 is the autopsy surgeon who conducted post mortem examination on the dead body of Netai Bauri on 9. 5. 93. On examination he found (i) Incised looking wounds over left parieto occipital region 5" X 2" upto bone depth with bonee fracture visible, (ii) Incised looking wound 4" X 1/2" over right parieto occipital region with bonee fracture visible and palpable, (iii) Incised wound 3" X 1" across frontal region of bone depth, (iv) I" X 4" incised wound across left arm triceps region of 1" depth in distal part of wound, (v) Multiple bruises on both arms and forearms. Careful dissection of the multiple wounds over arms and forearms showed both peri-and intra-muscular collections of blood. No bony fracture was detected, (vi) Multiple bruises over lower back. Careful dissection of bruises over lower back showed large peri-and and intramuscular collection of blood in lumber muscles. Further dissection per abdomen showed collections of blood clots in perinephric fatty capsule more so on the left side. No damage microscopically seen to involve kidneys. ( 16 ) EXAMINATION of Scalp : 1) Linear fracture of 6" extending from left parietal bone extending backwards and obliquely to left part of occipital bone. Further dissection per abdomen showed collections of blood clots in perinephric fatty capsule more so on the left side. No damage microscopically seen to involve kidneys. ( 16 ) EXAMINATION of Scalp : 1) Linear fracture of 6" extending from left parietal bone extending backwards and obliquely to left part of occipital bone. Subdural haematoma was found deep to anterior end of fracture of about 2" X 3" dimensions. 2)Depressed fracture of right parietal bone with linear extension backwards obliquely. Subdural haematoma and also evidence of bleeding within the brain matter. Blood found in lateral ventricle. ( 17 ) EXAMINATION of Thorax : 1) Fracture of mid shafts and anterior ends of ribs left 4th, 5th, 6th, 7th and 8th. Left lung collapsed with haemo pneumo thorax. In left pleural cavity. ( 18 ) THE kidneys were found intact but perinephric harmatomato were found. ( 19 ) HE opined that death was due to cardio respiratory failure caused by homicidal injuries to skull causing subdural and intra cerebral bleeding, compounded by respiratory embarrassment due to left lung collapse and haemothorax caused by homicidal fracture of the ribs. The post mortem report was marked ext. 9. His cross examination reveals that there is difference between incised looking wounds and incised wounds. Incised looking wounds may be caused by blunt weapon over hard substance such as the scalp. Axe and tangi are sharp cutting weapons and if any person is struck by axe and tangi incised wounds would be found but injuries haematoma, bruises and fracture might be caused by any hard and blunt substance. ( 20 ) MR. Tapas Kumar Ghosh, the learned Advocate for the appellants contended that in the inquest report names of assailants were not mentioned. The inquest report also bears Suri P. S. U. D. Case No. 94 of 1993. When already specific Mohammad Bazar P. S. Case was started the mention of Suri P. S. U. D. Case number in the inquest report is significant to show that assailants were unknown and purposefully the names of the assailants were inserted in the ante-timed FIR. ( 21 ) WE are not convinced with this submission of the learned Advocate for the appellants. The FIR (ext. 1) was lodged on 8. 5. 93 at 23. 00 hours. The patient Netai Bauri died at Suri Hospital at 00. 15 A. M. night i. e. on the same night. ( 21 ) WE are not convinced with this submission of the learned Advocate for the appellants. The FIR (ext. 1) was lodged on 8. 5. 93 at 23. 00 hours. The patient Netai Bauri died at Suri Hospital at 00. 15 A. M. night i. e. on the same night. On the basis of information received by Suri Police Station from the Suri sadar Hospital the Suri P. S. U. D. Case No. 94 dated 9. 5. 93 was started and the inquest was held by police officer who was attached to Suri P. S. We find no illegality in holding inquest on the dead body of Netai Bauri under the banner of suri P. S. U. D. Case number as Mohammad Bazar P. S. was not aware of the death of deceased at that time. The hospital authorities was not aware about starting of Mohammad Bazar P. S. Case as the patient party after admitting netai Bauri into Suri Hospital at about 8. 55 P. M. on 8. 5. 93 returned back to mohammad Bazar P. S. and lodged the FIR there at 11. 00 night. The hospital authorities informed the Suri P. S. concerning death of Netai Bauri and they accordingly started the U. D. Case at Suri P. S. and Suri P. S. was not aware of starting of specific Mohammad Bazar P. S. Case at the relevant time. ( 22 ) THE purpose of inquest is to disclose apparent cause of death. It should contain whether the death was accidental, suicidal or homicidal or caused by any animal and in what manner or by what weapon or instrument the injuries on the body of the deceased appear to have been inflicted. The inquest report need not contain the overt act of accused persons or the manner in which the accused persons assaulted the deceased and the names of the accused persons or the names of the eye witnesses [see - Amar Singh v. Balwinder Singh reported in AIR 2003 SC 1164 : (2003)2 SCC 518 and Radha Mohan Singh @ lal Saheb v. State of UP. reported in (2006)1 SCC (Cr) 661]. The law is clear that the inquest report should not contain names of assailants or the parts played by the assailants or their overt acts as well as names of eye witnesses. ( 23 ) MR. reported in (2006)1 SCC (Cr) 661]. The law is clear that the inquest report should not contain names of assailants or the parts played by the assailants or their overt acts as well as names of eye witnesses. ( 23 ) MR. Ghosh also contended that the FIR is hit by Section 162 of the cr. P. C. From evidence it transpired that Madhai Karmakar went to Mohammad bazar P. S. on their way to Suri Hospital and informed the matter to the Officer-in-Charge of Mohammad Bazar P. S. Subsequently thereafter, the FIR was lodged by P. W. 1 which was allegedly scribed by P. W. 2. P. W. 1 in his evidence stated that the contents of FIR was not read over to him. Accordingly, the FIR being hit by Section 162 of Cr. P. C. no reliance can be placed on such FIR and prosecution cannot take any benefit of such FIR. ( 24 ) WE are not convinced with the submission of Mr. Ghosh and after going through the materials in the record as well as evidence we do not find any element which can show that FIR was hit by Section 162 of the Cr. P. C. The casual remark of P. W. 1 in cross examination that on the way to Suri Hospital from Patel Nagar hospital Madhai Master had been to the Mohammad Bazar p. S. to just inform the matter cannot be accepted as lodging information of the incident at Mohammad Bazar P. S. before lodging of actual FIR. P. W. 2 Madhai karmakar @ Madhai Master totally negatived this portion of evidence of P. W. 1 uttered during his (P. W. 1) cross examination. Both in examination in chief and in cross examination P. W. 2 stated that he did not go to the Mohammad bazar P. S. on the way to Suri Hospital and he came to Mohammad Bazar P. S. with P. W. 1 on 'moped' after admitting the injured Netai Bauri at Suri Hospital. P. W. 1 himself did not go to Mohammad Bazar P. S. before actually lodging the fir, and consequently, he cannot give any statement touching an alleged fact which fact he himself did not see and, we cannot place reliance on such casual statement of P. W. 1 concerning a fact which was not seen by him. P. W. 1 himself did not go to Mohammad Bazar P. S. before actually lodging the fir, and consequently, he cannot give any statement touching an alleged fact which fact he himself did not see and, we cannot place reliance on such casual statement of P. W. 1 concerning a fact which was not seen by him. P. W. 2 is allegedly the person who went to Mohammad Bazar P. S. as stated by P. W. 1 which has been denied by P. W. 2 himself. There is no proof and evidence that before actually lodging FIR P. W. 2 went to the police station to give information of the incident. The FIR accordingly is not hit by provisions of Section 162 of cr. P. C. nor the same can be regarded as ante-timed. ( 25 ) MR. Ghosh next contended before us that there are serious discrepancies in the evidence of the witnesses as P. W. 4 stated about some assailants. One witness uttered name of only three accused persons whereas another witness uttered name of four accused persons. P. W. 9, the doctor stated that patient was not in a position to speak and naturally statement of the deceased disclosing name of the assailants cannot be believed. The witnesses did not state which particular accused was in possession of which type of weapon and which accused assaulted the deceased Netai Bauri with particular weapon. It was also contended by Mr. Ghosh that the Investigating Officer was not examined and other vital witnesses were also not examined and adverse presumption under Section 114 (g) of the Evidence Act should be drawn against the prosecution. Out of political rivalry the appellants were falsely implicated in this case. ( 26 ) ON the contrary, Mr. Swapan Kumar Mallick, the learned Advocate for the State submitted that in the FIR names of the assailants were disclosed. There are some eye witnesses and some witnesses came to place of occurrence immediately after the incident and heard about the incident and names of assailants from the injured and other eye witnesses. Evidence of latter category of witnesses are admissible under Section 6 of the Evidence Act as res gestae. Non examination of I. O. is not at all fatal for the prosecution, if the case is otherwise proved from evidence, materials on record and circumstances. Evidence of latter category of witnesses are admissible under Section 6 of the Evidence Act as res gestae. Non examination of I. O. is not at all fatal for the prosecution, if the case is otherwise proved from evidence, materials on record and circumstances. All probable witnesses were examined and vital witnesses were not withheld. The witnesses namely, Rishi Bauri and Sadhu Bauri could not be examined before the trial Court as they were dead. ( 27 ) AFTER considering the submissions of the learned Advocates for the parties and carefully scrutinising the evidence of the witnesses and materials on record we find that P. W. 1 stated that Juddha, Krishna and Haradhan were the assailants. P. W. 2 in his evidence disclosed name of four assailants namely, anath, Ram, Juddha and Sonai. P. W. 3 stated that Shyamapada, Ram, Krishna and Haradhan were the assailants. P. W. 5, the wife of deceased in her evidence stated that Shyamapada, Ram, Krishna, Haradhan, Juddha and Sonai were the persons who assaulted her husband which she heard from the mouth of her husband. P. W. 7 stated that Shyamapada, Ram, Krishna and Haradhan were the assailants who assaulted Netai Bauri. It is thus clear that P. W. 5 uttered name of six accused persons including Haradhan who is dead. She did not tell the name of Anath Bauri. Other witnesses did not state the name of all seven accused persons but the combined effect of evidence of P. W. 1, P. W. 2, P. W. 3 and P. W. 7 reveals involvement of all the accused persons in the incident. ( 28 ) FROM evidence we find that though P. W. 1 in the FIR narrated the incident in a manner as if he was an eye witness, but in fact, he was not the eye witness as he stated in his evidence. P. W. 2 was also not an eye witness. Evidence of P. W. 1 and P. W. 2 reveals that they heard from Netai Bauri the names of the assailants. Their evidence discloses that they heard from the deceased that he was assaulted by the assailants with axe, tangi etc. P. W. 3 in his evidence stated that the accused persons assaulted Netai with lathi, axe and tangi and he first saw the incident from road which was about 500 cubits only. Their evidence discloses that they heard from the deceased that he was assaulted by the assailants with axe, tangi etc. P. W. 3 in his evidence stated that the accused persons assaulted Netai with lathi, axe and tangi and he first saw the incident from road which was about 500 cubits only. He was proceeding towards the place of occurrence and finally saw the incident from a distance of about only 150 cubits. His evidence also reveals that Netai, the injured was conscious at that time and Netai told names of assailants. P. W. 5 also stated in her evidence that from her husband Netai she learnt that the accused persons assaulted him with axe, tangi. katari, lathi. Evidence of P. W. 6 reveals that he found the injured Netai lying with injuries on the land of P. W. 1 and his father Soukat Ali. P. W. 7 was working in the land of karali Garai and hearing hue and cry he came to place of occurrence and saw shyamapada, Ram, Krishna and Haradhan assaulting Netai with tangi, axe and lathi. ( 29 ) IN our opinion, law does not require that all the witnesses like a parrot or tutored witness would disclose names of all the assailants. Truthfulness of a witness depends upon his sense of perception, his power of memory and time of his arrival at place of occurrence. The incident was on 8. 5. 93 and the first witness i. e. P. W. 1 was examined in the trial Court on 16. 8. 99. The last witness i. e. P. W. 13 was examined on 13. 9. 2000. After a gap of so many years it was not possible for the witnesses to remember all the details of the incident. It is also clear from evidence that all the witnesses did not come to the place of occurrence at a time and for this reason all are not eye witnesses, and some are persons who came to the place of occurrence later on and heard about the incident from other witnesses and, some witnesses came to the place of occurrence immediately after the incident and heard about the incident as well as name of assailants and the weapons used from the mouth of the injured himself. The evidence of the witnesses who came to place of occurrence immediately after incident and heard about the incident from the injured Netai bauri including names of assailants and the offending weapons are admissible as res gestae under Section 6 of the Evidence Act and these witnesses are p. W. 1, P. W. 2 and P. W. 5. P. W. 3 and P. W. 7 are the eye witnesses. ( 30 ) P. W. 9, the doctor of Mohammad Bazar BPHC in his evidence stated that patient party told names of the assailants. The patient was semi unconscious. It reveals that before the doctor the deceased could not give any statement relating to names of the assailants. This cannot be a ground to disbelieve the prosecution case when from evidence of P. W. 1, P. W. 2, P. W. 3, p. W. 5 and P. W. 7 it is clear that patient Netai Bauri was not unconscious immediately after the incident. Their evidence proves clearly that immediately after incident Netai was conscious and he told names of the assailants who assaulted him and also disclosed what were the offending weapons that were used in assaulting him. The submission of Mr. Ghosh that patient was unconscious and he could not disclose name of assailants is not acceptable. The time gap between the incident and production of the injured before the doctor of Patel Nagar PHC cannot be ignored and due to the time gap for excessive bleeding and for the serious nature of injuries the patient gradually became weak and lost his senses and ultimately when he was produced at patel Nagar PHC he was semi unconscious. He could not regain his senses and breathed his last at Suri Hospital on the same night at 00. 15 hours. ( 31 ) THERE is no ground to disbelieve the evidence of P. W. 1, P. W. 2, p. W. 3, P. W. 5, P. W. 7 and their evidence clinchingly establishes that the prosecution was able to prove that the appellants assaulted Netai Bauri on 8. 5. 93 when he was proceeding from his house to 'baripukur' for taking bath. The assault on Netai Bauri caused by the appellants was so serious that Netai bauri ultimately succumbed to his injuries. 5. 93 when he was proceeding from his house to 'baripukur' for taking bath. The assault on Netai Bauri caused by the appellants was so serious that Netai bauri ultimately succumbed to his injuries. We find that vital witnesses were not withheld as two other important witnesses who were present at place of occurrence namely, Rishi Bauri and Sadhu Bauri were dead when the trial commenced as a result of which the prosecution would not examine them. Non examination of the I. O. is not fatal in this case when we find from evidence of other witnesses including ocular version of eye witnesses as well as medical evidence that prosecution was able to prove beyond all reasonable doubts that the appellants assaulted Netai Bauri in such a manner which resulted into his death. The assault on his head was so severe that death was inevitable. The medical evidence gives us the picture how serious was the assault on Netai bauri and the doctors opined that injury on head was sufficient to cause death. Examination of I. O. would not have favoured the appellants in this case when we find such overwhelming direct evidence and corroborative evidence. In the cross examination of the witnesses we did not find any material omission, contradiction, lacuna or defect which can impair value of their evidence and testing their evidence through the touchstone of reliability we find the witnesses credible and trustworthy. ( 32 ) IT is true that due to non examination of the I. O. the contradictions between evidence of the witnesses in Court and their earlier statements recorded under Section 161 of Cr. P. C. could not be taken, still considering the entire scenario, the evidence of witnesses including the evidence of doctors and considering the circumstances we find that non examination of the I. O. was not at all vital or fatal for the prosecution in this case. In our opinion, failure of the witnesses to state which accused was carrying what type of weapon is not a ground to disbelieve their evidence. After a gap of more than six years from the date of the incident it was not possible for them to remember which appellant was carrying which type of weapon and this cannot be a ground to disbelieve the evidence of the witnesses. After a gap of more than six years from the date of the incident it was not possible for them to remember which appellant was carrying which type of weapon and this cannot be a ground to disbelieve the evidence of the witnesses. Moreover, it appears that seven persons assaulted the deceased and the eye witnesses saw the incident from a gap of 150 cubits and it was not possible for them to observe actually which weapon was used by a particular accused on the person of deceased. It was not possible also for the deceased to remember who assaulted him with particular weapon as deceased netai Bauri was assaulted all on a sudden. A person who is being assaulted remains busy in saving himself and in such a situation when the attack on the deceased is by number of persons it is not possible for him to remember which accused assaulted him with which particular weapon. The deceased at best can utter the weapons which were in the possession of the accused persons when there were several accused persons who assaulted the deceased. Accordingly, failure of the witnesses to disclose the types of weapons used by each accused is not at all vital and this cannot be a ground to throw the prosecution case out of Court. In case of assault on deceased by members of unlawful assembly it is not necessary to record a finding as to who among the members of the assembly caused fatal injury. The Supreme Court relying on state of Rajasthan v. Nathu, 2003 SCC (Cr) 1156 in Munivel v. State of T. N. reported in (2006)2 SCC (Cr) 581 has held that, "it is also well settled that if death had been caused in prosecution of the common object of an unlawful assembly, it would not be necessary to record a definite or specific finding as to which particular accused out of the members of the unlawful assembly caused the total injury. " ( 33 ) MR. Ghosh also submitted before us that out of political rivalry the appellants were implicated in this case. " ( 33 ) MR. Ghosh also submitted before us that out of political rivalry the appellants were implicated in this case. We are not at all impressed with this submission as political rivalry cannot be a ground for false implication in this case when after the assault by the appellants the deceased succumbed to his injuries and the incident was witnessed by 2/3 eye witnesses and other witnesses coming to place of occurrence immediately after the incident heard the entire incident from the deceased who was alive at that time and was capable of speaking. The statement of deceased before the witnesses including his wife and others amounts to dying declaration and such statement of victim or the deceased cannot be disbelieved. ( 34 ) MR. Ghosh also contended that there was no motive behind the incident. From evidence of the witnesses it transpires that dispute between deceased and the appellants concerning the bamboo grove was settled through the intervention of Mohammad Bazar P. S. and local panchayat. After such settlement there was no animosity between the parties at the time of occurrence and as such the appellants had no motive or intention to assault Netai Bauri. ( 35 ) MR. Mallick for the State submitted that intention of the appellants and motive behind the incident is very much clear. The dispute concerning bamboo grove cuts both ways. The appellants who wanted to have control on bamboo grove was dissatisfied with the settlement and they had the grudge in their mind and out of their grudge and to get rid of Netai Bauri for having control over the bamboo grove the appellants assaulted Netai Bauri so mercilessly particularly on his head knowing fully well that after such assault he would not survive. The entire scenario and the manner in which the appellants assaulted netai Bauri clearly reveals that the appellants had the intention of causing murder of Netai Bauri. The injuries found on the deceased as it appears from evidence of medical officers including the post mortem surgeon clearly speaks of the motive behind the murder of Netai Bauri. The prosecution has been able to bring home its case against the appellants. ( 36 ) MINUTELY considering the evidence of the witnesses, the materials on record and the circumstances we are unable to agree with the views of Mr. The prosecution has been able to bring home its case against the appellants. ( 36 ) MINUTELY considering the evidence of the witnesses, the materials on record and the circumstances we are unable to agree with the views of Mr. Ghosh that there was no motive behind the incident of murder and there was no animosity between the parties at the time of occurrence. From evidence it transpires that there was dispute between the deceased Netai Bauri and the appellants concerning a bamboo grove. It also transpires from evidence that a few days before the incident the matter was amicably settled through the intervention of police and the panchayat. In our opinion, this is the root cause of the incident and, though there was apparently a settlement before the incident it was the main cause of attack on the deceased. The appellants could not swallow the alleged settlement as they had eye on the bamboo grove. Besides that, motive is not always a vital factor in the incident of murder. Here, in this case motive is clear as concerning control over the bamboo grove there was dispute between the parties, though there was apparently one settlement which did not satisfy the appellants and they had the intention to get rid of Netai Bauri. ( 37 ) NON examination of the Investigating Officer in this case is not fatal for the prosecution as we find from evidence of the witnesses, the medical evidence of the doctors and the circumstances that prosecution was able to prove its case beyond all reasonable doubts. When the prosecution case is well established and there is no ground to disbelieve the evidence of the witnesses, non examination of the I. O. cannot be a ground of acquittal and to draw adverse presumption under Section 114 (g) of the Indian Evidence Act. ( 38 ) AFTER carefully going through the evidence of the witnesses we find that involvement of appellant No. 2 Anath Bauri in the incident of assault on netai Bauri is doubtful as the prosecution witnesses except P. W. 2 did not utter his name. The eye witnesses namely, P. W. 3 and P. W. 7 did not state that anath Bauri also assaulted Netai Bauri. P. W. 1 and P. W. 5 who heard the names of assailants from the injured Netai Bauri himself did not tell that Anath bauri assaulted Netai Bauri. The eye witnesses namely, P. W. 3 and P. W. 7 did not state that anath Bauri also assaulted Netai Bauri. P. W. 1 and P. W. 5 who heard the names of assailants from the injured Netai Bauri himself did not tell that Anath bauri assaulted Netai Bauri. P. W. 2 came to the place of occurrence much afterwards as it appears from his evidence and he only stated that the deceased also uttered name of Anath Bauri and this portion of evidence has not been corroborated by other witnesses including the wife of deceased. Accordingly, in our opinion, benefit of doubt should be extended to Anath Bauri and he is found not guilty of the alleged offence under Sections 302/149 of the I. P. C. and also under Section 148 of the I. P. C. ( 39 ) THE aforesaid discussion makes it clear that the prosecution was able to prove its case beyond all reasonable doubts and to bring home the charge under Section 302/149 of I. P. C. and the charge under Section 148 of i. P. C. against the appellants 1 and 3 to 6. We find no merit in the appeal so far as it relates to appellant Nos. 1 and 3 to 6. In the result, the appeal in relation to appellant Nos. 1 and 3 to 6 is dismissed and the order of conviction and sentence passed by the learned trial Court against them are affirmed. The appeal in respect of appellant No. 2 Anath Bauri is allowed on the grounds mentioned above and Anath Bauri is found not guilty under Sections 302/149 of I. P. C. and also under Section 148 of the I. P. C. He is hereby acquitted and set at liberty and discharged from his bail bonds, if not wanted in connection with any other case. ( 40 ) THE appellant Nos. 1, 3, 4, 5 and 6 namely Shyamapada Bauri, sanatan Bauri @ Sonai, Juddha Bauri, Krishna Kanta alias Krishna Bauri and rampada Bauri respectively who are on bail are directed to surrender before the trial Court within 30 days from the date of this judgment and order to serve out the sentence failing which the trial Court would be at liberty to take appropriate action against them in accordance with law for their arrest and production before him to serve out the sentence. ( 41 ) CRIMINAL Section is directed to send down the lower Court records along with copy of this judgment to the Court of the learned Additional Sessions judge, 3rd Court, Suri forthwith for information and necessary action.