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Madhya Pradesh High Court · body

2008 DIGILAW 1298 (MP)

BABULAL s/o MANGILAL v. STATE OF M. P.

2008-11-06

S.L.KOCHAR, S.R.WAGHMARE

body2008
JUDGMENT : S. L. KOCHAR, J. 1. The appellants/accused persons stood convicted under Sections 302/149 (two counts), 307/149, 324/149 (two counts), 323/149 (four counts) and 148 of the Indian Penal Code, each is sentenced to suffer R.I. for life (on each count), R.I. for four years , R. I. for one year (on each count), R.I. for six months (on each count) and R.I. for one year respectively by judgment dated 7-9-1998 passed in Sessions Trial No. 382/1994 by the learned First Additional Sessions Judge, Ujjain. All the substantive jail sentences have been directed to run concurrently. Aggrieved by this judgment of conviction and order of sentence, the appellants have lodged their grievance by filing this appeal. 2. Laconically, the facts of the prosecution case are that on 12-6-1994, Premsingh and Shankarlal at about 3,00 PM along with Bhanwarsingh (PW-2), Bahadursingh (PW-14), Sidhu (PW-15), Harlal (PW-16), and Ganesh (PW-17) had gone to Badri Patel at Village Tabarkheda to get their land-dispute amicably settled. Shankar and Prem went to call the sons of accused Mangilal and when they returned, they were followed by the accused persons armed with Dhariya, Farsi, axe, Sabbal and lathi and started assaulting Shankar and Prem as a result whereof they died on the spot. Sidhu and Harlal were also surrounded and assaulted as a result whereof they sustained grievous injuries. Harlal, Bahadur, Sidhu, Ganesh and Bheru sustained injuries by sharp edged weapons whereas Bhanwarsingh and Ramsingh sustained injuries. On coming from Tabarkheda, Reshambai narrated the incident to Ambaram (PW-1) and he took Chowkidar Madan (PW-18) to the place of occurrence and thereafter lodged the First Information Report Ex.P/1 at P.S.Tarana which was recorded by ASI Devda (PW-21). In this report Ambaram also stated that Premsingh had purchased some land from Kasturibai and Kasturibai had also sold the same land to the sons of accused Mangilal Mongiya and a lis about this was pending in the Court and that the accused persons have committed murder of Shankar and Prem and caused serious injuries to others. Mohansingh Devda (PW-12) sent a copy of the report to the Magistrate First Class, Tarana and reach at the spot, prepared Panchnamas of the dead bodies of Prem and Shankar vide Ex.P/4 and P/5 and sent it for post-mortem examination vide requisition letters Ex.P/22-A and P/23-A, which was conducted by Dr. Mohansingh Devda (PW-12) sent a copy of the report to the Magistrate First Class, Tarana and reach at the spot, prepared Panchnamas of the dead bodies of Prem and Shankar vide Ex.P/4 and P/5 and sent it for post-mortem examination vide requisition letters Ex.P/22-A and P/23-A, which was conducted by Dr. Abbasali (PW-5) and issued their post-mortem examination reports Ex.P/22 and P/23 respectively. Dr. Abbasali also examined injured Harlal, Sidhu and Bahadur and issued their MLC reports Exs.P/19, P/20 and P/21 respectively. Dr. Anil Dube examined Ganesh, Bheru, Bhanwarsingh and Raisingh and gave their respective MLC Reports Ex.P/15, P/16, P/17 and P/18. Dr. Zamindar (PW-7) took X-Ray of Sidhu on 13-8-1994. His X-Ray report is Ex.P/30. PW-6 Dr. Vyas admitted him in Emergency Ward and referred him to M.Y. Hospital, Indore. His medical papers are Ex.P/24, P/25 and P/26. His medical report is Ex.P/27 while the Opthalmological and Dental reports of Harlal are Ex.P/28 and P/29. Clothes of deceased persons were seized vide seizure memos Ex.P/3 and P/33. Station House Officer (PW-20) Zala prepared the spot map Ex.P/63 and seized blood stained and controlled earth vide Ex.P/6. Similarly from another place, blood stained and controlled earth and a Baniyan soiled with blood were also seized vide Ex.P/8 and P/10. From the way to Tabarkheda, a pair of shoes of Harlal were seized vide Ex.P/12. From Store Keeper Maheshchandra (PW-3) bed head ticket of Sidhu and Bahadur were seized vide Ex.P/14. The appellants were arrested vide arrest memos Ex.P/34 to P/42. On disclosure statements under section 27 of the Indian Evidence Act, from Ex.P/43 to P/51 one Dhariya, one axe, Gendi, Farsi, Sabbal, a lathi, lathi, Lathi, and axe were recovered respectively at the instance of Babulal, Ratansingh, Harchand, Dariyaochand, Suresingh, Mangilal, Harinarayan, Ramchandra Sidhu and seized vide seizure memos Ex.P/52 to P/60. The seized articles were sent to the Forensic Science Laboratory vide memo Ex.P/61 and the report thereof is Ex.P/62. After completion of investigation the accused/appellants were charge-sheeted for the aforementioned offences. 3. The appellants denied their guilt and stated that they have been falsely implicated. According to them, Premsingh and Shankar were quarrelling after consuming liquor, destroying the properties of Krishanchandra and Harishchandra and misbehaving with the daughter of Kishan and for this act the villagers had assaulted them. In their defence, they have examined DW-1 Ashok Kumar Jain,, Head Constable Dansingh (DW-2), Kishan (DW-3) and Nandram (DW-4). According to them, Premsingh and Shankar were quarrelling after consuming liquor, destroying the properties of Krishanchandra and Harishchandra and misbehaving with the daughter of Kishan and for this act the villagers had assaulted them. In their defence, they have examined DW-1 Ashok Kumar Jain,, Head Constable Dansingh (DW-2), Kishan (DW-3) and Nandram (DW-4). 4. The learned trial Court on conclusion of trial and hearing both the parties, convicted and sentenced them as indicated hereinabove. 5. We have heard learned counsel for the parties and perused the entire record carefully. 6. The homicidal death of Premsingh and Shankar has not and could not be challenged by the appellants. According to the post-mortem report of Premsingh Ex.P/22, he had the following six injuries :- 1. Incised wound on right side of forehead 1" x ¼" x ¼". 2. Incised wound on left ear ¾" x ¼" x ¼". 3. Incised wound 2½ " x 1" muscle deep on left thigh. 4. Incised wound ¾" x ¼" x ¼" on left leg. 5. Incised wound ¾" x ¼" x ¼" on right elbow. 6. Incised wound on right occipital region 2" x ¾" bone deep. These injuries were caused by sharp and hard object. According to Dr. Abbas Ali (PW-5) the deceased Premsingh died of coma due to injuries on vital part i.e. brain. Dr. Abbas Ali (PW-5) in Ex.P/23 stated that he found following three injuries on the person of Shankar :- 1. Incised wound ¾" x ¼" x ¼" on left leg. 2. Incised wound ½" x ¼" x ¼" on left leg. 3. Incised wound 1½ " x ¼" x 1/18" on right cheek. 4. Incised wound 1½" x ½" on left mandible. 5. Incised wound on left parietal region 2¼" x ¾" bone deep. In the opinion of the medical expert, the cause of death was coma due to injury on head and brain. Injury No. 5 was sufficient in the ordinary course of nature to cause death. 7. Thus, having regard to the medical evidence and the evidence of the prosecution witnesses, it is amply established that the deceased persons met homicidal death. 8. Injury No. 5 was sufficient in the ordinary course of nature to cause death. 7. Thus, having regard to the medical evidence and the evidence of the prosecution witnesses, it is amply established that the deceased persons met homicidal death. 8. Learned counsel for the appellants has submitted that the First Information report Ex.P/1 lodged by PW-1 Ambaram was in ante date and time and brought into existence after due deliberations by the complainant party, and therefore, the conviction and sentence of the appellants are not sustainable. Learned counsel has taken this Court through the statement of PW-1 Ambaram who has admitted lodging of report Ex.P/1. According to this witness, he was resident of village Surajpura and had gone on the date of incident before one and a half to two years from the date of recording of his statement in Court i.e. on 15-3-1996 for resolving the dispute of land between the deceased persons Shankar and Pema (Prema) and appellant Siddhu, one Ganesh and deceased appellant Mangilal, father of appellant Siddhu. He had gone along with deceased and injured persons at the house of Badri Seth (PW-11). At that time, the appellants were not at the house of Badri Seth and deceased Shankar and Pema had gone to call appellants Harish, Siddhu, Haricharan and deceased appellant Mangilal. After some time, Reshambai ( not examined) came running to his house in Surajpura and disclosed that Pema and Shankar were killed by Haricharan, Siddhu and Gattu (his alias name is Ratan Singh, appellant No. 2). In para 24, he stated that village Tobrikheda was situated at a distance of one and half kilometres from, village Surajpura. She disclosed the names of all the nine accused persons assaulting by Dharia, Farsi, axe and Sabbal (crowbar) and other weapons. This witness reached on the spot and saw both the deceased persons lying on the ground along with injured eye witness PW-15 Siddhu and Harlal in serious condition. In answer to question put by the defence counsel, he also stated that Bahadur was also in serious condition. Bahadur was conscious and Bhanwarlal, Ganesh, Rai Singh and Bheru were also injured. 9. According to this witness deceased Pema and Shankar had purchased the land from one Kasturibai and they were in possession thereof. The same land was again sold by Kasturibai to the appellant No. 9 Siddhu. Bahadur was conscious and Bhanwarlal, Ganesh, Rai Singh and Bheru were also injured. 9. According to this witness deceased Pema and Shankar had purchased the land from one Kasturibai and they were in possession thereof. The same land was again sold by Kasturibai to the appellant No. 9 Siddhu. Pema and Shankar were in possession of the land. After seeing the deceased persons and injured, he went alone to the Police Station and lodged the report Ex.P/1. When the police reached on the spot, he was also there and in his presence police prepared spot map as also the inquest. In cross-examination, he denied any relation with the deceased persons and accepted that they were his caste-fellows. He has also admitted in cross-examination that when they reached with the dead body at the police station, injured witnesses Bhanwarlal and Ganesh had reached at the police station and they disclosed that they had run to forest. On the spot he met with five injured persons i.e. Harlal, Natthu, Bahadur and deceased persons Shankar and Pema. The further say of this witness in cross-examination is that he reached at the Police Station when it was half Sun-set and immediately after reaching to the Police Station his report was not written. He disclosed about the incident and police party came with him in a tempo to village Tobrikheda from where they took the deceased and injured persons to the Police Station in the night at 9.00 PM where injured PW-17 Ganesh and Shankar were also present and he lodged the report, but he was not able to give specific time of lodging of report. 10. This witness was not the eye witness of the incident and he lodged the report only on the information received from Reshambai who has not been examined by the prosecution. Therefore, his statement is not admissible being hit by the law of hear-say evidence as per provision under section 60 of the Evidence Act. Learned counsel has vehemently argued that the First Information was lodged on 12-6-1994 at 6.00 PM and according to this witness he lodged the First Information Report only after taking the dead bodies at the Police Station in the night at 9.00 PM. It is pertinent to mention here that the defence counsel has not confronted this witness with the First Information Report Ex.P/1 in regard to time of its lodging. It is pertinent to mention here that the defence counsel has not confronted this witness with the First Information Report Ex.P/1 in regard to time of its lodging. It is trite law that the First Information Report is not a substantive piece of evidence and the same can be used only for contradicting its author in Court with the Court statement and corroboration. It is also well settled legal position that when the witness has not been given opportunity to explain the contradiction, the same cannot be used by either party. [See : Dharmaram Bhagare vs. State of Maharashtra, AIR 1973 SC 476 and B.A. Eamaiah and others vs. State of A. P, 1996 Cri.L.J. 4464, State (Delhi Administration ) vs. Laxman Kumar and others, AIR 1986 SC 250 , para 39, State of U. P. vs. Babul Nath, (1994) 6 SCC 29 , Podda Naramyan and others vs. State of A. P., AIR 1975 SC 1252 and Sat Paul vs. Delhi Administration, 1976 MPLJ (SC) 206 = AIR 1976 SC 294 ]. 11. Learned trial Court has discussed in detail the arguments advanced by the learned counsel for the defence before the trial Court in regard to lodging of the report in ante date and time and while considering the statement of PW-17 Ganesh that PW-1 Ambaram lodged the report on the next day, held in para 13 that if version of Ambaram is accepted about lodging of the report the same day, the statement of Ganesh is falsified and if statement of Ganesh is accepted then the version of Ambaram cannot be accepted. Learned trial Court has also considered the statement of Ambaram that Police received telephonic message from inhabitants of village Tobrikheda and reached on the spot. Learned Court below in para 13 has given finding that Ambaram (PW-1) and Ganesh (PW-17) are the rustic and illiterate villagers, they were not in a position to distinguish between writing of several documents by the police and interrogation out of which one was the First Information Report and others were simple statements. Learned Court below in para 13 has given finding that Ambaram (PW-1) and Ganesh (PW-17) are the rustic and illiterate villagers, they were not in a position to distinguish between writing of several documents by the police and interrogation out of which one was the First Information Report and others were simple statements. All the witnesses in unequivocal terms admitted that the witnesses Bhanwar and Ganesh reached at the Police Station at 9.00 PM, therefore, if the First Information Report was lodged in the night after 9.00 PM, the AS Shri Deoda could have recorded the First Information Report at the instance of injured eye witness and not at the instance of Ambaram (PW-1). 12. In para 14, learned trial Court answering the arguments in regard to First Information Report, held that the First Information Report was recorded by the police at the instance of PW-1 Ambaram in the evening and if it was not recorded actually, he was having very good opportunity to record the Dehati Nalish at the instance of injured Harlal and Bahadur who were examined by Dr. Abbas Ali (PW-5) on 12-6-1994 in the night at 8.00 PM. The ASI would have not left this opportunity to record the Dehati Nalish and report at the instance of injured eye witnesses, but he could not record it as the First Information report was already recorded in the evening by PW-1 Ambaram who was not an eye witness. This Court is in full agreement with the reasoning given by the trial Court in paras 13 and 14 of the impugned judgment that because of illiteracy and poor understanding of witnesses Ambaram and Ganesh the First Information Report Ex.P/1 could not be treated as ante dated and ante time . The finding of the learned trial Court is based on tests discussed by the Supreme Court in the case of Mehrajsingh vs. State of U.P., 1994 SCC (Cri) 1390. The finding of the learned trial Court is based on tests discussed by the Supreme Court in the case of Mehrajsingh vs. State of U.P., 1994 SCC (Cri) 1390. We have gone through the judgment rendered by the lower Court, reasoning given by it as well as the statements of Ambaram, Ganesh, ASI Shri Deoda and other eye witnesses and are of the opinion that if the investigating agency wanted to prepare the First Information Report in ante date and ante time, they had ample opportunity to do so if really First Information Report was not recorded as shown in Ex.P/1 at the instance of one of the injured eye witnesses out of five injured eye witnesses. 13. In the instant case, the prosecution has successfully established by the statement of PW-20 regarding sending of the copy of the First Information Report on the same day i.e. 12-6-2004 vide Despatch Register No. 1878 to Judicial Magistrate First Class. Learned trial Court has also given finding to this effect in para 16 of the impugned judgment. 14. Before we proceed to appreciate the statement of five injured eye witnesses, we would like to mention the law enunciated by the Supreme Court regarding appreciation of evidence in the case of State of Maharashtra vs. Siraj Ahmed Nisar Ahmed, AIR 2007 SC 1859 , as under :- "While appreciating the evidence, the court must keep in mind that the powers of observation differ from person to person. What one may notice, other may not. An object or thing happened might reflect kin the image of a person's mind, whereas it may go unnoticed on the part of another. It has not come out in the evidence or in the cross-examination that PW-55 was also a party to the search of the flat along with PW-50 after the arms were produced by the accused who had made a categorical statement that he had made a search of block No. 402 before the completion of the panchnama. While appreciating the evidence of a witness, the approach must be whether to the evidence of the witness read as a whole appears to have a ring of truth. While appreciating the evidence of a witness, the approach must be whether to the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence, more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence, as a whole, and evaluate in them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matter not touching the core of matter in issue, hyper-technical approach by taking sentence out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole." 15. Keeping in mind the above principle, now we proceed to appreciate the evidence of the eye witnesses. 16. The prosecution case is based on five injured eyewitnesses account of PW-2 Bhanwar Singh, PW-14 Bahadur, PW-15 Siddhu, PW-15 Harlal and PW-17 Ganesh. PW-2 Bhanwarsingh has deposed that on the date of incident, he had gone along with deceased Shankar and Prema and eye witnesses at the field of Shankar and Prema which was purchased by them from one Kasturabai and the same land was also sold by Kasturabai later on to the son of deceased appellant Mangilal, because they had ploughed the said field on the date of incident. From the field they all reached at the house of Badri Patel (PW-11) of village Tobrikheda. From the house of Badri Patel deceased Shankar and Prema had gone to call the sons of deceased Mangilal and they returned back. Thereafter, the appellants came over there having Dhariya (Heavy sharp edged iron weapon), Farsi, Axe, Sabbal and Lathi and first blow of lathi was caused by appellant Harinarayan to Shankar and thereafter, all the appellants assaulted Shankar and Prema. Eye witness PW-15 Siddhu was surrounded by them. Shankar and Prema were killed and PW-16 Harlal was assaulted by appellant Babulal alias Babu, Gattu (Ratan Singh) and Harinarayan. PW-14 was assaulted by Harinarayan, Babu and Ramchandra. He and injured eye witness Ganesh (PW-17) were also assaulted by appellant Siddhu and Harinarayan. Eye witness PW-15 Siddhu was surrounded by them. Shankar and Prema were killed and PW-16 Harlal was assaulted by appellant Babulal alias Babu, Gattu (Ratan Singh) and Harinarayan. PW-14 was assaulted by Harinarayan, Babu and Ramchandra. He and injured eye witness Ganesh (PW-17) were also assaulted by appellant Siddhu and Harinarayan. After sustaining two lathi blows on the leg, he ran away and reached at village Surajpura where he disclosed about the incident to Arnbaram. His this version is not supported by Ambaram. According to Ambaram he was informed by Reshambai. 17. Bhanwar Singh proved the inquest reports of both the deceased persons Ex.P/4 and P/5, seizure of blood stained and controlled earth from the spot, one Sabbal and shoes vide seizure memos Ex.P/6, P/7 and P/8 to P/13. According to this witness appellant Siddhu and Gattu (Ratansingh) were having axes. Harinarayan, Babu, Mangilal and other accused persons were having Sabbal, Dhariya and Lathi respectively. In para 4, learned trial Court has recorded his demeanor that witness while seeing the accused persons speaking their names slowly. This shows that even on the date of recording of his statement on 15-3-1996 (after more than one and a half years) he was slightly in fear otherwise there was no reason to speak slowly. In cross-examination, he admitted one mile's distance between villages Surajpura and Tobrikheda and though he admitted to go to village Tobrikheda along with deceased persons and other eye witnesses, but he denied that that they had taken a can of liquor and under the influence of liquor while abusing, reached to village Tobrikheda. He also admitted that they were taken by deceased Shankar and Prem Singh to village Tobrikheda for settling the land dispute, but he denied taking of quarrel. He also denied any kind of relationship or friendship with deceased Premsingh and Shankar and deposed that he was taken being a person residing in their village. In cross-examination, he was confronted with his case-diary statement Ex.D/1 regarding omission of the fact that on the date of incident, first he had gone to the field which was purchased by Shankar and Prema and the said field was ploughed by the appellants. According to this witness, he had mentioned this fact in the statement and why the same was not written by the police, he cannot assign any reason. According to this witness, he had mentioned this fact in the statement and why the same was not written by the police, he cannot assign any reason. On consideration, we do not find this omission as a material one which may attach vulnerability to the testimony of this witness who sustained injuries in the same incident and medically examined by PW-4 Dr. Anil Kumar Dube. Dr. Dube found contusion on outer side of left thigh of this witness ad measuring 15 Cm. x 6 Cm. caused by hard and blunt object. He proved the medical report Ex.P/17. He examined on 13-6-1994 and according to the opinion of Dr. Dube, his injury could be caused within 12 to 24 hours from the date and time of medical examination. The version of this witness that he was assaulted by Lathi is corroborated by medical evidence. We have gone through the cross-examination of this witness which is in quite detail, but nothing substantial has come out to weaken his testimony as an eye-witness. On the contrary, the cross-examination establishes his going with deceased persons on the date of incident along with other witnesses to village Tobrikheda for resolving the land dispute with accused persons. 18. The next injured eye witness is PW-14 Bahadur. This witness was medically examined by PW-5 Dr. Abbas Ali on 12-6-2004 and Dr. Ali found four injuries on his person. All the four injuries were incised wounds on different-different parts of his mandible and one was on temporal region. Dr. Ali referred him witness for X-Ray examination to District Hospital, Ujjain. He proved his medical report Ex.P/21 and in his opinion, the injuries were sustained within 24 hours. Witness Bahadur Singh has deposed that he had gone along with deceased Prem Singh and Shankar to village Tobrikheda for compromise and settling the dispute regarding land which was purchased from Kasturabai and Kasturabai again sold the same land to the deceased appellant Mangilal and his sons-appellants Siddhu and Gattu (Ratansingh) whereas the land was in possession of deceased Shankar and Prem Singh and a list was going on in Civil Court. Regarding the incident, the say of this witness is that first they had gone to the place of witness Badri Patel and thereafter, both the deceased persons had gone to call the appellant Siddhu and Gattu. Regarding the incident, the say of this witness is that first they had gone to the place of witness Badri Patel and thereafter, both the deceased persons had gone to call the appellant Siddhu and Gattu. When deceased Shankar and Premsingh were returning back, immediately thereafter the appellants reached on the spot having weapons in their hands and surrounded them. The appellants Siddhu,. Harcharan, Dariyao, Harinarayan, Gattu, Ramchandra, Suresingh and Mangilal were having axe, Sabbal, Farsi, lathi, Dhariya and lathi respectively. After surrounding them, all assaulted Shankar and Prema. According to this witness, he was assaulted by appellant Siddhu by axe, causing injuries on his face and mandible and his this version is duly corroborated by medical evidence of Dr. Ali (PW-5). Eye witness PW-15 Siddhu s/o Bheruji was assaulted by Daryao Singh, Ramchandra and Gattu (Ratansingh) and he sustained injuries on head. Further say of this witness is that eye witness Harlal (PW-16) was assaulted by axe by appellant Ramchandra and they were requesting the appellants not to assault, but they continued to assault and also assaulted one Raisingh and injured eye witness PW-2 Bhanwarsingh. The matter was reported in Police Station by Ambaram and both the deceased died on the way while taking to the hospital near a culvert and witness Siddhu (PW-15) as well as PW-16 Harlal became unconscious on the spot. They were taken to the hospital. In cross-examination, he admitted that both the deceased were his uncles. In cross-examination, he was confronted with his case/diary statement Ex.D/2 regarding omission of fact of his becoming unconscious after the incident and Premsingh and Shankar called him and they had gone for compromise of the land dispute. In our considered opinion, these are all minor omissions and the same would not cause any dent to the prosecution case. Presence of this witness on the spot is established. In the manner in which the incident has occurred, it would be difficult for a witness who was also assaulted, to give minute details of the incident. Learned counsel for the appellants vehemently argued that all the five injured eye witnesses have not given specific overt act of the appellants and their general and omnibus statements should have not been relied upon by the trial Court. Learned counsel for the appellants vehemently argued that all the five injured eye witnesses have not given specific overt act of the appellants and their general and omnibus statements should have not been relied upon by the trial Court. We have perused the statement of all the eye witnesses and in our considered view, it was not possible for a normal human being to give specific overt act when they all (seven persons) were being assaulted by nine accused persons, out of whom two have died and five sustained injuries. In this situation, it was difficult for this eye witness to see and keep in mind any kind of specific overt act of the accused persons especially when they themselves were being assaulted and the accused persons were having different-different weapons assaulting indiscriminately to them. 19. It is pertinent to mention here that if two deceased persons and five injured eye witnesses, in total seven, would have gone for entering into a quarrel, they would not have gone without any weapon. This is clear from the prosecution case itself as well as the cross-examination of all the five injured eye witnesses that none of the appellants sustained any injury in the incident. 20. PW-15, the third eye-witness Siddhu Mogiya son of Bheraji was medically examined by PW-5 Dr. Abbas Ali who found him in an unconscious condition. His pulse rate was slow and suffered fracture of right parietal bone. The nature and number of injuries of this witness and other witnesses as well as the deceased persons clearly establish that the appellants were having various kind of weapons i.e. hard and sharp edged and hard and blunt objects like axe and lathi. More or less this witness Siddhu has described the incident in the same way with slight difference which is natural to occur. If an incident is witnessed by more than one person from different-different angle, each one would give version according to his own observation and there is no possibility of identical or similar version by them. In cross-examination of this witness, nothing substantial has come to cause dent to the prosecution case. In cross-examination para 8, he has denied the defence suggestion that they misbehaved with the daughter of Kishan. Kishan appeared as DW-3 and has not supported this defence suggestion. In cross-examination of this witness, nothing substantial has come to cause dent to the prosecution case. In cross-examination para 8, he has denied the defence suggestion that they misbehaved with the daughter of Kishan. Kishan appeared as DW-3 and has not supported this defence suggestion. According to him, when he was inside his house, ten to twelve persons along with both the deceased persons, residents of village Surajpura had passed by his house under influence of liquor and broken the tiles of his house. At that moment, he concealed himself inside the house. In cross-examination, he admitted that he did not lodge any report to this effect in the Police Station. Looking to the nature of injuries and condition of this witness Siddhu, his presence on the spot has been established beyond all reasonable doubt. 21. The fourth injured eye witness is PW-16 Harlal. He was also medically examined by PW-5 Dr. Abbas Ali. (In the statement of Dr. Abbas Ali, it appears that in para 9, by typing mistake the name of this witness is typed as "Hiralal" whereas his name is Harlal. His father's name is rightly typed as Ramaji.). Dr. Ali noted three incised wounds, one on left cheek below ½" of left eye having bluish swelling around the wound., second incised wound on left leg, 6" below the knee, third incised wound was also on left leg 4" below the knee and the fourth injury was an abrasion on back portion near back bone. In the opinion of Dr. Ali, the injuries Nos. 1, 2 and 3 were caused by sharp edged weapon while injury No. 4 was caused by hard and rough object. Dr. Ali advised X-ray of injuries Nos. 1, 2 and 3. In his opinion, injuries could be caused within 24 hours. Witness Harlal was examined on 12-6-1994. The say of this witness is that deceased Shankar had purchased the land in village Tobrikheda. On the date of incident, they had gone to settle the dispute and reached at the house of Patel Badri (PW-11), from where the deceased Prem Singh and Shankar had gone to call deceased appellant Mangilal and his sons Gattu and Siddhu. After return of deceased Premsingh and Shankar, the appellants reached on the spot having Dhariya, Sabbal, Farsi, Lathi and other weapons and started assaulting them. After return of deceased Premsingh and Shankar, the appellants reached on the spot having Dhariya, Sabbal, Farsi, Lathi and other weapons and started assaulting them. He was assaulted by Farsi by Babu and he sustained injury below the right eye. Appellant Suresingh caused him injury by axe on his left leg. All the appellants had assaulted both the deceased persons. He has specifically stated that he was perplexed, therefore, could not describe the specific overt act of each accused, as to who assaulted whom. He has also stated that in the same incident, witnesses Siddhu, Bahadur, Ganesh, one Raisingh and others sustained injuries. In cross-examination para 9 he denied any kind of relationship with the deceased persons and said that he and deceased persons were residing in the same village. That apart, he had no relations with them. He was confronted with his case-diary statement Ex.D/4, but the same are not very material in nature which could detract his testimony. 22. In para 6, he has denied the defence suggestion that they were creating disturbance after consuming liquor in village Tobrikheda and they were taken by deceased Premsingh and Shankar Singh, for assaulting the appellants on rent. He has also denied the defence suggestion that they had pelted stones on the house of Mangilal or attacked at the house of Harchand and damaged the tin-sheets of the roof as well as caused damage to the tiles of the house of Kishan and misbehaved with his daughter at that moment, deceased appellant Mangilal was passing through and was assaulted by him and his companions. It is pertinent to mention here that Mangilal did not receive any injury in this incident. 23. The fifth injured eye witness Ganesh (PW-17) was medically examined by PW-4 Dr. Anil Kumar Dube. (The name of this witness is wrongly typed in para 1 of deposition of Dr. Dube as "Rajesh" whereas medical report Ex.P/15, proved by Dr. Dube discloses his name as Ganesh son of Mangilal and the parties have not disputed this fact). This witness Ganesh sustained linear abrasion on right forearm caused by pointed object. It would be apposite to mention here that Bheru son of Bhagirath and Raisingh were also medically examined by Dr. Dube and their medical reports are Ex. P/16 and P/18 respectively proved by him in Court, but both these injured persons have not been examined by the prosecution. It would be apposite to mention here that Bheru son of Bhagirath and Raisingh were also medically examined by Dr. Dube and their medical reports are Ex. P/16 and P/18 respectively proved by him in Court, but both these injured persons have not been examined by the prosecution. It is well settled legal position that on one point, if there are several witnesses out of them majority of witnesses if examined, the non-examination of one or two witnesses would not go against the prosecution. PW-17 Ganesh has testified that he had gone along with deceased persons and eye witnesses and other persons i.e. Raisingh and Bheru to village Tobrikheda. First they had reached at the house of Badri Patel (PW-11) from where the deceased Premsingh and Shankar went to call the appellants and they returned back. Thereafter, the appellants reached with Sabbal, Axe, Dhariya and Lathis and started assaulting them, because of which Shankar Singh and Premsingh died and Bahadur became unconscious due to serious injuries and he, Harlal and others also sustained injuries. He gave specific first overt act on the person of deceased Shankar by Haricharan causing injury on his head by Sabbal, because of which, he fell down on the ground. Thereafter, all started assaulting him. He also stated that that deceased persons and appellants were having dispute over the land which was purchased first by deceased from Kasturabai, thereafter, deceased appellant Mangilal and his sons purchased the same land, but the deceased Shankar and Prema were having possession thereon. He has also stated about pendency of civil case in the Civil Court in this regard between them. He has also denied the defence suggestion that they were creating nuisance after consuming liquor in village Tobrikheda. At the house of Mangilal, Harchand and Kishan, they had also damaged the tiles of house of Kishan, because of which they were assaulted by the villagers of village Tobrikheda. This defence suggestion has not been substantiated by the defence by adducing any cogent and reliable evidence, direct or circumstantial. 24. At the house of Mangilal, Harchand and Kishan, they had also damaged the tiles of house of Kishan, because of which they were assaulted by the villagers of village Tobrikheda. This defence suggestion has not been substantiated by the defence by adducing any cogent and reliable evidence, direct or circumstantial. 24. As we have discussed herein-above, group of deceased persons was consisting of as many as nine persons ( deceased Prema and Shankar, five injured eye witnesses examined in Court and two injured Raisingh and Bheru not examined) and if they were having even ordinary lathis in their possession and created nuisance or disturbance or caused damage to the houses of the villagers, they could have also used weapons if they were possessing, in their defence and they would have not kept themselves idle and would have not allowed the villagers to assault them indiscriminately causing deaths of two persons , serious injuries to one witness and causing injuries to four eye witnesses in Court and two more persons namely Raisingh and Bheru. 25. The Supreme Court in the case of Krishan vs. State of Haryana, (2006) 12 SCC 459 , has discussed .about appreciation of statement of injured eye witnesses and held that credibility of injured eye witnesses should not be doubted unless there are strong circumstances. In case of Krishan (ibid), the accused persons had also suffered injuries in the same incident which were not explained by the injured eye witnesses and the Supreme Court has held that "Merely because prosecution has failed to explain Injuries on the accused the same cannot be a solitary ground for doubting the prosecution case, if otherwise evidence relied upon is found to be credible." In the case at hand, none of the accused persons suffered any injury and it is also not the defence case that the accused persons sustained injuries in the same incident along with the villagers. Therefore, in the considered opinion of this Court, the instant case stands on better footing than the case of Krishan (supra). The statement of all the five injured eye witnesses are fully corroborated by medical evidence and there are no circumstances to doubt the veracity of their statements. This Court does not find any infirmity discernible so as to warrant interference in the well reasoned judgment passed by the learned trial Court. The statement of all the five injured eye witnesses are fully corroborated by medical evidence and there are no circumstances to doubt the veracity of their statements. This Court does not find any infirmity discernible so as to warrant interference in the well reasoned judgment passed by the learned trial Court. [Also see : Abdul Rashid Abdul Rehman Patel vs. State of Maharashtra, (2007) 3 SCC (Cri) 323 and Krishan and others vs. State of Haryana (2007) 2 SCC (Cri) 214]. 26. Badri Patel (PW-11) is also proving the fact of inimical terms between the appellants and deceased persons on account of land and on arrival of the police in the village, he pointed out the dead bodies which were taken by the appellants in a tempo. This witness has expressed his ignorance about the incident reason being the co-villager of the appellants. 27. The appellants have examined four witnesses in defence. DW-1 Ashok Kumar Jain was posted as Non-Medical Assistant in Government hospital, Tarana. He brought Hospital Medical Register of entries from 12-6-1994 to 17-6-1994 and said that on 15-6-1994 in the evening at 6.20 PM Suresingh s/o Mangilal was medically examined and carbon copy of his report is Ex. D/6. This report shows presence of one lacerated wound 1 CM x 1 CM on scalp. No original medical report was submitted before the trial Court and no reason has been assigned for not adducing secondary evidence and no procedure has been followed for adducing secondary evidence. The appellant Suresingh was medically examined on 15-6-1994 i.e. after three days of the incident and his medical report discloses that he sustained injury within 48 hours i.e. much after the incident. No reason has been assigned as to why the doctor who examined the appellant Suresingh, could not be examined in Court. No such suggestion was given to all the five injured eye witnesses regarding causing of injury to the appellant Suresingh during the course of incident. In these circumstances, in the considered opinion of this Court, this document Ex.D/6 is not at all helpful to the defence. 28. DW-2 Dansingh has proved Ex. D/7 carbon copy of the report dated 30-8-1994, which is said to have been lodged by Parvatibai wife of Ramesh Mogiya against witnesses Ganesh, Bahadur Singh and Ambaram. This report is not all related with the instant incident occurred on 12-6-1994. Ex. 28. DW-2 Dansingh has proved Ex. D/7 carbon copy of the report dated 30-8-1994, which is said to have been lodged by Parvatibai wife of Ramesh Mogiya against witnesses Ganesh, Bahadur Singh and Ambaram. This report is not all related with the instant incident occurred on 12-6-1994. Ex. D/7 is the report for a non-cognizable offence regarding incident dated 29-8-1994. i.e. much after the incident of the instant case. Ex. D/8 to D/13 are the carbon copies of the reports dated 11-9-1994, 18-9-1994, 9-9-1994, 3-9-1994 and 7-9-1994. Out of these report, Ex.D/9 is a carbon copy of hand-written report and remaining are also hand-written and carbon copy of the complaint regarding dispute over cutting of crop against the deceased persons and some of the witnesses. All these reports, are establishing the fact which has been stated by the prosecution witnesses that the dispute was going on regarding land between the appellants and deceased persons, therefore, there was strong and sufficient motive for the appellants to commit murder of Shankar and Prem Singh. The defence has not denied the incident and failed to adduce any concrete material to establish their case that the deceased and the witnesses were assaulted by the villagers by preponderance of probability. DW-2 Head Constable Dansingh has admitted in cross-examination that about the reports Ex.D/8, and D/10 to D/13 there is no receipt given by the concerned Police Station to which these reports were addressed and he has also stated that when-ever any person is submitting written report, there was procedure in the Police Station to give acknowledgment thereof by putting seal and sign by the concerned police officer. 29. DW-3 Kishan has stated that ten to twelve persons in drunken condition had passed by his house and damaged the tiles. He has not named the deceased and the witnesses. In cross-examination he has admitted that he had not lodged any report in the police and when police reached in the village for investigation of the case at that time also, he did not lodge any complaint. 30. DW-4 Nandram has stated that before four to five years from the date of his examination i.e. 25-8-1998, seven to eight persons residents of village Surajpura had come in front of his house in inebriated condition and pulled the wooden log which he had fixed for construction of his house. 30. DW-4 Nandram has stated that before four to five years from the date of his examination i.e. 25-8-1998, seven to eight persons residents of village Surajpura had come in front of his house in inebriated condition and pulled the wooden log which he had fixed for construction of his house. He also stated that out of them, he was knowing only Shankar and Prema. In cross-examination he admitted that on the date of incident, police reached in the village but he did not lodge any report regarding the act of Shankar and Prema and other unknown persons. The statement of this defence witness is also not at all proving the defence case. On the contrary it is established that the deceased persons and injured persons were residing in village Surajpura and were present on the date of incident in their village. 31. Learned counsel for the appellants has vehemently argued that the prosecution has not examined even a single witness from village Tobrikheda where the incident took place. Learned trial Court has discussed this issue in para 30 of the impugned judgment and held that the appellants and deceased persons were foreigner to that village where the incident had occurred, therefore, it was not expected from the villagers to give evidence against the appellants residents of their village and the learned trial Court has relied upon the Supreme Court judgment rendered in the case of Appabhai vs. Gujarat State, AIR 1988 SC 696 wherein it is observed that now-a-days, independent person does not want to interfere in dispute of others. Under such situation it is very difficult for the police to search and examine independent witnesses. Therefore, only on this ground, the prosecution case would not corrode. In this regard we have perused the statement of Investigating Officer PW-20 Surendra Singh Jhala and find that no question was put to this witness as to why he had not examined witnesses or the villagers of the place of incident. Learned counsel has also argued regarding delay in recording statements of eye witnesses but no question has been put to the I.O. Surendra Singh Jhala in this regard. Therefore, in the considered opinion of this Court delay simpliciter would not adversely affect the prosecution case especially when the Investigating Officer was not afforded an opportunity to explain the same. 32. Learned counsel has also argued regarding delay in recording statements of eye witnesses but no question has been put to the I.O. Surendra Singh Jhala in this regard. Therefore, in the considered opinion of this Court delay simpliciter would not adversely affect the prosecution case especially when the Investigating Officer was not afforded an opportunity to explain the same. 32. In view of the foregoing discussion, we are of the considered view that the appellants after forming an unlawful assembly whose common object was to commit murder of deceased persons and assaulting to the witnesses is fully proved and the appellants have been rightly convicted by the trial Court, The Supreme Court has held in the case of Shiv Prasad Bhor vs. State of Assam, AIR 2007 SC 918 that "It is not necessary that each person of the assembly should be assigned independent part in the commission of crime. If it is found that one of them was a member of the unlawful assembly and that unlawful assembly assaulted the deceased which ultimately caused the death of deceased, then all who were members of unlawful assembly can be held liable". In the instant case, looking to the motive, reaching of the appellants together with deadly weapons on the spot and jointly using dangerous weapons for causing injuries to deceased persons as well as witnesses indiscriminately is sufficient to hold that they formed an unlawful assembly whose common object was to commit murder of deceased persons and causing grievous and other injuries to their companions. [See also : Horilal vs. State of U. P., (2006)13 SCC 79]. 33. Ex consequenti, we do not find any substance in this appeal. Therefore, the same is liable to be and is hereby dismissed. Conviction and sentences of the appellants as passed by the trial Court are hereby affirmed. The appellants are on bail except No. 8 Siddhu s/o Mangilal. They are directed to surrender to their bail bonds before the trial Court on 19-12-2008 for serving out the remainder part of their jail sentences. On failure of the appellants to appear before the trial Court on the specified date, the trial Court is directed to take appropriate action against the appellants and their surety/sureties, in accordance with law under intimation to this Court.