JUDGMENT N.P. Gupta , J. - By this appeal the accused appellants seek to challenge the judgment of the learned Additional Sessions Judge (Fast Track), Ratangarh District Chum dated 8.3.2002, convicting all the appellants for the offences under Sections 148, 341, 302, 149 and 323/149 I.P.C. and sentencing each of them, under Section 148 with three years rigorous imprisonment, and fine of Rs. 100 /- in default to undergo further rigorous imprisonment for one month, under Section 341 sentencing to three months' simple imprisonment with fine of Rs. 100 /- in default to undergo 7 days' simple imprisonment, under Section 323/149, one year's simple imprisonment with fine of Rs. 200/- in default to undergo one month's simple imprisonment and under Section 302/149 sentenced to rigorous imprisonment for life with fine of Rs. 1000/- in default to undergo one year's rigorous imprisonment, and also directing all substantive sentences to run concurrently.2. The brief facts of the case are, that at about 8.30 AM on 31.5.1999, police recorded the statements of Sita Ram PW-1 at Government Hospital, Sridungargarh, wherein Sita Ram had stated that Budha Ram son of Bhanwar Lal Harijan is his maternal uncle son, and thus is a cousin. With this it was stated that at about 12.30, last night, there was some altercation between Omprakash and Budha Ram in connection with the branch of liquor contract. Then it is stated that on that day i.e. 30.5.1999 at about quarter to 7, Budha Ram Harijan resident of Momasar Bas was returning after defecating, and when Budha Ram reached near house of Raju Ram Harijan, the 7 accused persons being residents of Momasar Bas, Sridungargarh in a body came armed with Lathis, Sariya, Chosangi and Chain, and obstructed Budha Ram, and started giving beating to him. Omprakash was armed with iron Sariya, who thrust it into abdomen of Budha Ram, Rijiya Shravan Ram was armed with Lathi, with which he had given blow on the head of Budha Ram. Babu Lal was also armed with Lathi, who inflicted injury on the back of Budha Ram. Mala Ram was armed with Zai, with which he inflicted injuries on the back of Budha Ram. Renu Ram CO Surja Ram, Sundar Sundariya were also armed with Lathis, who also inflicted injuries on the head and back of Budha Ram. Mukesh was armed with Chain with which injuries were inflicted on Budha Ram. Mala Ram was armed with Zai, with which he inflicted injuries on the back of Budha Ram. Renu Ram CO Surja Ram, Sundar Sundariya were also armed with Lathis, who also inflicted injuries on the head and back of Budha Ram. Mukesh was armed with Chain with which injuries were inflicted on Budha Ram. Then Budha Ram raised a hue and cry, whereupon Sanjay son of Ruga Ram rushed to intervene, whereupon Mukesh inflicted injuries to Sanjay with chain, and on hearing his cries also, the deponent, along with Kalu Ram and Jaikaran, and other inhabitants of the locality rushed on the spot. Thereupon the accused persons ran away. The two injured received serious injuries, therefore, the deponent and Ruga Ram brought them to hospital in a tempo, where Budha Ram died, and Sanjay being serious, has been referred to P.B.M. Hospital, Bikaner. From this statement, commission of offences under Sections 302, 147, 148, 149, 341 and 323 was disclosed, therefore, it was forwarded to the Police Station for registering a case. Accordingly, an F.I.R. was registered being F.I.R. No. 122/1999, and investigation was commenced. After completing necessary investigations, charge sheet was filed against all the accused persons. The case was then committed, and ultimately transferred to the learned trial Court.3. Learned trial Court framed charges for offences under Sections 148, 341, 302/149 and 323/149 against each of the appellants, who obviously denied the charges.4. During trial the prosecution examined 12 witnesses, and tendered in evidence some 47 documents. The accused persons in their statement under Section 313 adopted a stand of denial, and stated that the witnesses are falsely deposing. It was also given out that Sanjay and Budha Ram were having dispute on some domestic issue, and it was Sanjay, who gave beating to Budha Ram, and they have been falsely implicated. No evidence was led in defence, however, the police statement of Ruga Ram was tendered in evidence as Ex.D-1. Learned trial Court after so completing the trial and heai-ing the parties convicted and sentenced the appellants as above.5. No evidence was led in defence, however, the police statement of Ruga Ram was tendered in evidence as Ex.D-1. Learned trial Court after so completing the trial and heai-ing the parties convicted and sentenced the appellants as above.5. Assailing the impugned judgment, it is contended that all the prosecution witnesses are close relations of the deceased, and inter-se also, and notwithstanding this, most of the witnesses have not supported the prosecution case, inasmuch as, the informant PW-1, witnesses produced as eye-witness, being PW-2 Raju Ram, PW-3 Jaikaran, and PW-4 Kalu Ram, have not supported the prosecution, and have turned hostile. Then it was submitted, that there are material contradictions appearing in the evidence of PW-5 Ruga Ram and PW-12, the injured Sanjay, which contradictions have the effect of each demolishing the evidence of other. Likewise, it was also submitted, that the prosecution has resorted to prevarications and has manipulated the things at every stage. Thus, the learned trial Court was in error in convicting the appellants as above. It was also sought to be contended, that none of the witnesses, who have come-forward as eye-witnesses, had at all seen the incident, inasmuch as by the time, Ruga Ram claims to have reached, Sanjay had already reached, rather according to him, Sita Ram, Raju Ram, Kalu Ram and Jaikaran had already reached when he reached the spot, and that, when this witness reached on the spot, Budha Ram was lying unconscious. It is submitted, that thus it cannot be said that he is an eye-witness of the incident. Likewise, regarding PW-12 also it is contended, firstly that he is the son of the brother of the deceased, and he was having illicit relations with the wife of the deceased, on that count there was dispute between the deceased and the witness. With this it is submitted, that as a matter of fact, it was this witness, who inflicted injuries on the deceased, and the accused persons have been falsely implicated. With this it is submitted, that as a matter of fact, it was this witness, who inflicted injuries on the deceased, and the accused persons have been falsely implicated. Secondly, it was submitted, that even if the things were to be taken on the basis of what has been purportedly deposed by this witness, still it is clear, that he has made improvements from his earlier version, inasmuch as, he claims to have gone on the site on hearing the hue and cry of the fight, while standing on his roof, but this is not so mentioned in his police statement Ex.P-39, and on being confronted, he deposed that he had so stated therein, and does not know as to why it is not so mentioned therein. Likewise in Ex.P-39 it is not mentioned that Mala Ram was inflicting injury with Zai, of course it is mentioned that Zai was with Mala Ram, who was beating to Budha Ram. Then he was also confronted with Ex.P-39, by pointing out, that it is not mentioned therein, that all the accused persons inflicted injuries with Lathis to Budha Ram, to which the witness deposed, that of course it is not so mentioned therein, but he did state so. Likewise he was also confronted with Ex.P-39 by pointing out, that it is not mentioned therein that Omprakash inflicted a piercing blow with Sariya on the witness, and to that also the witness deposed, that of course it is not so mentioned but he did depose. Then it was contended, that in cross-examination the witness has categorically admitted, that when he reached on the spot, Budha Ram was lying flat. It was also submitted, that the witness has exaggerated the things out of all proportions, inasmuch as, he has stated to have been inflicted 10 to 15 injuries, while according to his injury report Ex.P-32 there are only two injuries on his person. Likewise regarding deceased also he has stated that some 25-26 injuries were caused to him, while according to the post mortem report Ex.P-31, there are only 19 injuries on his person. Then he has stated that Sariya was measuring around 51/2 feet, while as would be clear from a look at Ex.P-6, the recovery memo of Sariya, that it is only 21/2 feet long. Thus it is submitted, that no reliance can be placed on his evidence either.6. Then he has stated that Sariya was measuring around 51/2 feet, while as would be clear from a look at Ex.P-6, the recovery memo of Sariya, that it is only 21/2 feet long. Thus it is submitted, that no reliance can be placed on his evidence either.6. Learned Public Prosecutor on the other hand supported the impugned judgment and submitted, that the defence is seeking to magnify some insignificance and minor contradictions here and there, out of all proportions. While on the basis of such insignificant contradictions the basic substratum of the prosecution case cannot be thrown away.7. We have heard learned counsel, and have considered the submissions, and have gone through the entire record very closely.8. A perusal of the record shows, that it is true, that the material witnesses including the informant PW-1 Sita Ram, PW-2 Raju Ram, PW-3 Jaikaran and PW-4 Kalu Ram have turned hostile, but then whit is significant to note is, that Sita Ram in the examination-in-thief has clearly stated, that he had seen 6 of the accused persons at the time of incident, i.e. he did not see Mala Ram there. Then he has stated, that on the previous night there was a dispute between the deceased and Omprakash, and in the morning when Budha Rain was returning after defecating he saw him just behind his house. It was also stated, that Mukesh was armed with Chain, and has attributed other weapons to other accused persons. It is after so stating that he has turned around, and stated, that he did not see actual injuries being inflicted, but had seen after the injuries had been caused. It is on this count, that the witness was declared hostile, and was confronted with the F.I.R., his previous statements, and various recovery memos, and other memos prepared in the investigation. It is also significant to note, that even this witness on being cross-examined by the accused persons, did not state, that PW-12 Sanjay is having any illicit relations with the wife of deceased Budha Ram, or that it was this witness PW-12, Sanjay, who had caused injuries to Budha Ram, and killed him. His statements were recorded on 25.3.2000, and continued to the next day. His statements were recorded on 25.3.2000, and continued to the next day. Then the statements of PW-2 were recorded on 29.4.2000 on which date the examination-in-chief of PW-3 Jaikaran was also recorded, and he was cross-examined on 11.5.2001, i.e. after more than a year, on that day PW-4 was also examined. Things can better be comprehended than described, that it is during this interregnum period, that the witnesses were won over, and Jaikaran was also won over also during this period of one year. It may also be noticed, that from 29.4.2000 the accused persons had been getting the case adjourned. The witness did not turn up on 1.6.2000. Then he was summoned by bailable warrant. Then on 25.8.2000 other two witnesses Ruga Ram and Sanjay were present, on account of strike of lawyers their statements could not be recorded. Then on still next day being 26.8.2000 also adjournment was sought on behalf. of the accused persons, and PW-3 was summoned by bailable warrant. Then on 17.10.2000 again witnesses Ruga Ram and Sanjay were present, but again adjournment was sought on behalf of the accused persons. Then some time Presiding Officer was not there, and it is in this sequence that on 11.5.2001, the statements were completed. This does clearly show, that the accused were trying hard to win over the witnesses and in that process, even the witnesses, who appeared in the Court on good number of hearings, were also not allowed to be examined. In such circumstances, in our view, nothing turns on the fact, that the first four witnesses have not supported the prosecution case. Then evidence of the two important eye-witnesses, being PW-5 Ruga Ram and PW-12 Sanjay is very much there on record, and they have fully supported the prosecution case. According to PW-5 the deceased was returning after defecating, and when he reached near the Bheruji temple, 6 named accused persons and one more accused, whose name he does not remember; then said Sundariya, gave beating to the deceased. On hearing the cries he went on the spot, and found Sita Ram, Raju Ram, Kalu Ram and Jaikaran (PW-1 to 4) were already there, and the accused were giving beating to the deceased. Then he has deposed, that Omprakash was armed with iron Sariya, Mala Ram was having Zai, Mukesh was 'having chain, and others were having Lathis. On hearing the cries he went on the spot, and found Sita Ram, Raju Ram, Kalu Ram and Jaikaran (PW-1 to 4) were already there, and the accused were giving beating to the deceased. Then he has deposed, that Omprakash was armed with iron Sariya, Mala Ram was having Zai, Mukesh was 'having chain, and others were having Lathis. He has also stated that accused persons were also giving beating to Sanjay, who is his son. He has identified accused persons, and stated, that seeing them the accused went away. Then the deceased was brought to hospital, where Budha Ram died, and Sanjay was sent for treatment to Bikaner. It was also stated, that the occurrence occurred on account of dispute between the deceased on one hand and accused persons on other hand, with relation to the branch of liquor shop. Then this witness has proved various memos. This time again on the request of the learned counsel for the accused, the cross-examination of this witness was reserved on 12.7.2001, however, on the very next date of hearing, being 30.8.2001, his cross-examination was completed. It appears that this witness could not be won over. In cross-examination he has stated, that Budha Ram was his step brother, being the son of his junior mother, while Sita Ram is his cousin, being his father's sister's son, while Ruga Ram is his nephew, being his sister's son, and Jaikaran is also cousin uncle. Then Kalu Ram is also a cousin, being father's sister's son, and Sanjay is the son. He has admitted, that there is no enmity with these 5 witnesses, whether of the deceased or of the witness. Then he was cross-examined on the aspect of his being employed in Sridungargarh Municipality, and to be on duty on the date of incident, to which he denied. He has also denied the suggestion, about he is being on duty and to have subsequently sent application for leave. Then he has stated, that Sita Ram, Ruga Ram, Kalu Ram and Jaikaran being the four witnesses PW-1 to 4 were there on the spot before he reached, and he has stated that the house of Sita Ram and Ruga Ram is at a distance of 10 Paces from the temple, while the houses of Jaikaran and Kalu Ram are bit away, as Kalu Ram's house is at a distance of 150 paces. Then he has named the persons living around the temple, none of which came on the spot. Then he has stated that his house is at a distance of 1-11/2 furlong, and has to come through another lane, as there is no straight passage. He has stated that after the beating, locality persons raised a cry, hearing that, he reached, at which time Budha Ram was lying unconscious, and except the 5 witnesses PW-1, 2, 3, 4 and 5 there was nobody. Then Sita Ram and the witness took the deceased to hospital, and in that process his cloths were stained with blood, blood was lying there. Then he was cross-examined on the aspect of recovery and other memos. He was confronted with the portion E to F of Ex.D-1, which he said to be wrongly recorded and has stated, that Sanjay had reached the spot even before the occurrence of Rola.9. Then we come to the evidence of PW-12 Sanjay. He is 23 years old, and has stated, that on the fateful day, in the morning, he was standing on his roof, at that time he heard a hue and cry towards the Bheruji temple. Thereupon he rushed there and found the seven accused persons to be giving beating to Budha Ram. Omprakash was armed with Sariya, Mala Ram was having a double horn Zai, Mukesh was armed with chain and all others were armed with Lathis. Omprakash pierced the Sariya in the abdomen of Budha Ram. Then pierced the Sariya on the left arm of the witness. Budha Ram fell down, and all persons started giving beating to the witness, whereupon he fell unconscious. He has then stated, that by the time he gained conscious, he was told that Kalu Ram, Sita Ram and Ruga Ram have brought him from spot to Bikaner hospital, and was also told that Budha Ram has died on account of Sariya injuries. In cross-examination he has stated, that the five witnesses PW-1, 2, 3, 4, and 5 had reached on the spot after this witness, which fact was told to him by all persons after the witness got conscious. Then he has stated, that after infliction of injuries with Sariya, Chain and Zai, all accused persons inflicted injuries with Lathis, and that he was inflicted injuries after Budha Ram was inflicted injuries with Sariya, Zai etc. Then he has stated, that after infliction of injuries with Sariya, Chain and Zai, all accused persons inflicted injuries with Lathis, and that he was inflicted injuries after Budha Ram was inflicted injuries with Sariya, Zai etc. Then he has stated that he fell unconscious after receiving 5 injuries and also received Lathi injuries. Sariya was pierced into his left arm, and after giving beating to him all the accused persons ran away. He has stated that till he gained conscious he was not aware as to who brought Budha Ram to hospital. He has stated that Budha Ram was his uncle (mime) and other witnesses are also his uncles, however, Rugha Ram is his father. Then he has stated that from the roof, incident was not visible, only he could hear the cries. Then he was confronted with his police statement Ex.P-39, to the effect that it is not mentioned therein that he heard the cry on the roof, to which the witness deposed that he did state so, and does not know as to why it is not mentioned here. Likewise, he was also confronted about absence of injuries being caused with zai by Mala Ram, to which he replied, that it is mentioned that Mala Ram was armed with Zai and was giving beating. Then he was confronted with the Ex. 39, about absence of the statement, about all the accused persons giving beating with Lathis, to which again he stated that it is not so written, but he did state. Then he was confronted with the portion E to F of Ex.39, about his father and Sita Ram to have carried them in tempo to Government hospital, which he disowned. Then he has stated that the temple has the gate towards the east, and the occurrence occurred in front of the temple, there is Abadi there, and that on the place of incident one Lota was lying, and that his house is at a distance of 10 to 20 paces from the temple. He has stated that some 10 to 15 injuries were caused to him, while 25 to 26 injuries were caused to the deceased. Then he was confronted with the police statement Ex.P-39, about absence of the allegation of Omprakash having pierced Sariya in his left arm, to which again he deposed, that it is of course not there, but he did state so. Then he was confronted with the police statement Ex.P-39, about absence of the allegation of Omprakash having pierced Sariya in his left arm, to which again he deposed, that it is of course not there, but he did state so. Then he was suggested, that he is having illicit relations with the wife of the deceased, and that is the cause of trouble, to which he denied. He was also suggested, that on the spot there was a fight between deceased and this witness, wherein deceased died, which was also denied by him, and then he has stated that when he reached on the spot, Budha Ram was lying flat 1T). He has then deposed that Sariya was about 51/2 feet long. This is the whole evidence of the two witnesses.10. We have gone through the appreciation of evidence made by the learned trial Court, and have also considered the comments made on their testimony by the learned counsel for the accused. It is true, that the two witnesses are related to the deceased, but then, that by itself is not a ground to discard their evidence, if they had seen the incident. Significantly Sanjay has received injuries in this very incident, and thus, to borrow the expression frequently used by Horible the Supreme Court, PW-12 is "branded witness". So far as the sequence of PW-12 and PW-5 reaching on the spot is concerned, the witnesses are rustic villagers, Harijan by caste, and are labour-class persons, from whom it is too much to expect to depose a picturesque sequence of events. It is required to be comprehended that the deceased did not know that such incident would happen, so as to enable him to go even to ease himself by being accompanied by requisite number of witnesses, to testify the incident, in the event of it happening. Obviously the locality, as has come in the statement of other witnesses, is a Harijan Bash, obviously in such a small community, all inhabitants must be in close -knit relationship. Obviously the locality, as has come in the statement of other witnesses, is a Harijan Bash, obviously in such a small community, all inhabitants must be in close -knit relationship. From a look at site plan, Ex.P-5 it is clear, that outside the temple there is a Chowk, and it is in this Chowk that the incident occurred, obviously therefore, it is only after the commencement of the incident that a hue and cry is supposed to be raised, and it is that cry which attracted the witnesses, and since such huge number of injuries are caused, obviously the two witnesses can reasonably be believed to have reached the place of incident, and to have seen at least some part of the incident. Then if such number of accuseds are standing near the victim, duly armed with the weapons, and injureds are lying, having received fresh injuries, it can reasonably be believed, that the accused person did cause the injuries. This hypothesis is clearly applicable qua PW-5 Ruga Ram, but so far as PW-12 Sanjay is concerned, he did receive injuries in this very incident. In that view of the matter, it is not possible to disbelieve the two witnesses, to be the eye-witnesses.11. The question then still survives, that these two witnesses are relatives inter-se, and are relatives of the deceased, and their evidence is required to be considered and appreciated with care and caution. From a reading of the statements of PW-12 it is clear, that he has exaggerated the things, including number of injuries received by him, number of injuries received by the deceased, and the size of the weapon being Sariya. However, "falsus in uno falsus in omnibus" is not the principle or rule of evidence, applicable in India, and therefore, we are required to ignore the exaggeration part of the evidence, and find the reliable substratum, which may be truthful.12. If we consider the matter from that stand point, it does appear, that PW-12 has made improvements from his previous statement, recorded by the police, being Ex.P-39, inasmuch as, in that statement he did not give out that all the accused persons inflicted injuries with Lathis to the deceased, nor did he state, that Sariya was pierced in his left arm. From a look at Ex.P-32, being the injury report of PW-12, (though Ex.P-32 has been marked on two documents, the other one being a receipt of the Forensic Science Laboratory) it is clear, that he had sustained a penetrating wound on the left upper arm, in the depth of 1.5 cm. Thus, this omission is not of any consequence. Then so far as his evidence about Mala Ram causing injury with Zai is concerned, Zai is said to be a weapon having two horns of iron. Obviously if piercing injury were to be caused by Zai, the victim should have received two piercing wounds at a distance, corresponding to the distance between the two horns of the Zai, while from a look at the post mortem report Ex.P-31, and the statement of the doctor, PW-6 Dr. S.K. Bihani, it is clear, that the deceased did not have any such wounds. In these circumstances, in our view, though we believe Sanjay PW-12, about the whole story, but also feel, that it would not be safe to believe him about involvement of the accused Mala Ram, who is attributed Zai injuries, so also the accused Babu Lal, Surajmal, Shravan Ram and Sundar, who are attributed Lathis. However he can safely be believed, so far as the involvement of accused Omprakash and accused Mukesh are concerned, as the deceased has 7 piercing injuries on his body, and at least 5 injuries, which clearly looked to be injuries caused by chain. May be that some more injuries being blunt injuries may have been caused by chain, but at least the above 5 injuries being injury No. 1, 3, 4, 7 and 12 are clearly caused by chain.13. We may also deal with the criticism levelled on the basis of the contention that this witness PW-12 was having illicit relations with the wife of the 'deceased, and on that count there was a dispute, and/or that the deceased died on account of the injuries caused by this witness PW-12. Even at the cost of repetition, we are constrained to observe, that even the hostile witnesses PW-1 to 4 were even not suggested any of these things. Then to PW-5 also this was not suggested. Thus it clearly appears to be an after thought defence, suggested to the last witness being PW-12, without any basis. Even at the cost of repetition, we are constrained to observe, that even the hostile witnesses PW-1 to 4 were even not suggested any of these things. Then to PW-5 also this was not suggested. Thus it clearly appears to be an after thought defence, suggested to the last witness being PW-12, without any basis. It is a different story that looking to the nature and number of injuries found on the person of the deceased, all those injuries could possibly not be caused by Sanjay, as even in cross-examination of Sanjaya himself, he has not been attributed to be armed with any weapon whatever, much less any weapon capable of causing all or above injuries. Then this is not even suggested to him, by seeking his explanation, that the injuries found on the person of this witness were received by him, at the hands of the deceased.14. Thus, in our view, from the evidence of PW-12 and PW-5, it is safely established, that at least the two accused persons being Omprakash and Mukesh are responsible for causing the incident of killing the deceased. Looking to the nature and number of injuries found on the person of the deceased, there is no escape from the conclusion, that the injuries do make out the offence under Section 302. We are mindful of the fact that the accused persons were charged with offence under Section 149, while we are finding it safe to only convict the two, in that regard, we may make it clear, that the deceased had 19 injuries in all on his person, and the two accused persons, whose conviction we are upholding were armed with chain and Sariya only, by which other injuries could not be caused, and therefore, it does show, that there were other accused persons, whose identity could not be proved to the safe satisfaction of the Court, but nonetheless they did share the common object, and thus, the conviction of the accused persons Omprakash and Mukesh, as recorded by the learned trial Court, does not require any interference.15. The result of the aforesaid discussion is that the appeal is partly allowed. The accused persons Babu Lal, Mala Ram, Sravan Ram, Surajmal and Sundar are acquitted of all the charges, by being given benefit of doubt, while the convictions of the accused appellant Omprakash and Mukesh are maintained, and their appeals are dismissed. The result of the aforesaid discussion is that the appeal is partly allowed. The accused persons Babu Lal, Mala Ram, Sravan Ram, Surajmal and Sundar are acquitted of all the charges, by being given benefit of doubt, while the convictions of the accused appellant Omprakash and Mukesh are maintained, and their appeals are dismissed. The acquitted accused persons are on bail, their bail bonds stand cancelled, they need not surrender. Accused appellant Mukesh is in custody and the learned trial Court is directed to get the accused Omprakash arrested and commit to custody, for serving out the remaining term of sentences. Appeal partly allowed. *******