JUDGMENT Ashwani Kumar Singh, J.-The sole appellant has challenged the judgment and order dated 15.5.1989 passed in Sessions Trial No. 181/243 of 1987/87 by Sri Laxman Jee Jha, the learned IInd Additional Sessions Judge, East Champaran, Motihari, convicting him under Section 302 of the Indian Penal Code for causing the murder of Baidyanath Prasad and sentencing him to undergo rigorous imprisonment for life. 2. The prosecution case is based upon the oral statement (fardbeyan) of Smt. Chandrakala Devi (PW 9) wife of the deceased Baidyanath Prasad, which was recorded by Mahesh Chandra Verma (PW 12), the Inspector of Police-cum- Officer- incharge of Town Police Station, Motihari, on 30.4.1986 at 7.45 am., regarding an occurrence which is alleged to have taken place on the same date at about 6 am. It is alleged that on the relevant date and time of occurrence Baidyanath Prasad came down to take bath in the courtyard on the ground floor of the house situated in mohalla- Bisatipatti as on account of low pressure, the pipe water was not reaching the upper storey of his house. He asked the informant to bring oil. The informant went upstairs and as soon as she arrived with oil on the verandah of the courtyard through the staircase, the appellant Vidya Sagar Prasad her nephew came out of his room armed with a Nepali Khukhari (Exhibit-XI) and struck the deceased Baidyanath Prasad twice with the same, as a result of which, the deceased sustained severe cut injury on his neck and also sustained injury on his left scapula. The injuries resulted into profused bleeding. The injured Baidyanath Prasad fell down and was writhing restlessly in pain. The informant rushed to her husband and while trying to hold him up raised shouting, whereupon neighbours Chandra Shekhar Pathak (not examined) and Suresh Pathak (not examined) and her relative Arun Kumar (PW 8) and others reached there. The appellant went out of the house and fled away with Khukhari. As a result of the aforesaid injuries, the injured Baidyanath Prasad expired just after a short while. The fardbeyan of the informant Chandrakala Devi was duly, attested by witness Arun Kumar (PW 8) and one Vijay Kumar. 3. Mr. M.C. Verma, who recorded the fardbeyan of the informant forwarded the same to the police station for institution of a case under Section 302 of the Indian Penal Code and took up the investigation himself. The fardbeyan of the informant Chandrakala Devi was duly, attested by witness Arun Kumar (PW 8) and one Vijay Kumar. 3. Mr. M.C. Verma, who recorded the fardbeyan of the informant forwarded the same to the police station for institution of a case under Section 302 of the Indian Penal Code and took up the investigation himself. A formal F.I.R. was, thereafter, drawn by Mr. B.P. Tiwari (not examined), Circle Inspector, Town Police Station, Motihari, on 30.4.1986 itself at 8.15 a.m. 4. It is to be noted here that a telephonic message was received regarding the occurrence on 30.4.1986 at 7.30 am from someone at Motihari Town police station where it was entered in station diary. The said station diary entry No. 834 dated 30.4.1986 has been proved by the Investigating Officer and marked as Ext-9. Mr. M.C. Verma, on receipt of the telephonic information, proceeded along with the police party to the place of occurrence. On his arrival in the common house of the appellant and the deceased, he saw the dead body of Baidyanath Prasad. 5. In course of investigation, an inquest report (Exhibit-5) was prepared by PW 12 at the place of occurrence itself. The Investigating Officer has noted two injuries on the person of the deceased, one deep cut bleeding injury was found behind the neck from the right side and the other cut injuries was found on left scapula. The dead body was sent for post -mortem examination and doctor Chandra Shekhar Prasad (PW 10) conducted the post-mortem examination at 11.30 am on 30.4.1986 on the dead body of the deceased at Sadar Hospital. Motihari and found the following injuries on his person :- (i) One incised wound on the right side of neck 10'' x 4" x upto middle of Cervical Vertebra, Trachea and Thyroid. (ii) All the muscles of right side of neck completely incised. (iii) All big and smaller blood vessels front side of neck completely incised. (iv) Cervical Vertebra (between C2 and C3) and Cord incised. (v) Trachea, Thyroid incised Oesophagus incised. The post-mortem report (Exhibit-2) has got some relevance, According to the doctor, as noted in the post-mortem report, the bladder was found empty and rigor mortis was found present on the dead body of the deceased. The doctor conducting the post-mortem opined that the time elapsed since death was within 38 hours approximately. 6. (v) Trachea, Thyroid incised Oesophagus incised. The post-mortem report (Exhibit-2) has got some relevance, According to the doctor, as noted in the post-mortem report, the bladder was found empty and rigor mortis was found present on the dead body of the deceased. The doctor conducting the post-mortem opined that the time elapsed since death was within 38 hours approximately. 6. In course of investigation, the I.O. prepared first seizure list at 8.30 am on 30.4.1986 at the place of occurrence itself with respect to seizure of blood stains found on the floor of the courtyard and verandah, an old blood stained ‘Genara’ (a kind of cloth made bed) on which the dead body was kept, a blood stained Dhoti? by which the dead body was covered, etc. The witnesses to the first seizure are Yogendra Prasad (not examined) and Mohan Prasad Gupta (PW 1). PW 1 has proved his signature on the said seizure list, which has been marked (Exhibit-1). The second seizure list was prepared on the same day at 9 am with respect to seizure of a Nepali Khukhari and a case of Nepali Khukhari, which were seized from a municipal drain near the house of one Rajendra Prasad Verma. The witnesses to the second seizure are Mohan Prasad Gupta (PW 1) and Anil Kumar (PW 2). Their signatures on the seizure list have been proved and marked as Exhibit-1/1 and 1/2 respectively. Both the seizure lists have been marked as Exhibits-7 & 7/1 respectively. The Investigating Officer summoned one Ashok Kumar Verma (PW 6), a Photographer, who took photographs of the deceased from different angle. The five negatives of the deceased have been proved and marked as Exhibits I to V and the five photographs (positives) of the deceased have been proved and marked as Exhibits-VI to X. The material exhibit Khukhari has been proved and marked as Exhibit- XI. The Investigating Officer had also prepared a rough sketch map of the place of occurrence which has been proved and marked as Exhibit-6. The station diary entry No. 834 dated 30.4.1986, on the basis of information received at the police station, has been brought on record and marked as Exhibit IX. The Investigating Officer had also prepared a rough sketch map of the place of occurrence which has been proved and marked as Exhibit-6. The station diary entry No. 834 dated 30.4.1986, on the basis of information received at the police station, has been brought on record and marked as Exhibit IX. The endorsement with signature of C.J.M., Motihari on the letter sent to the Director, Forensic Science Laboratory, Bihar, Patna with list of exhibits is marked as Exhibit-X. The receipt of Incharge Officer of Forensic Science Laboratory, Patna of Exhibit-X is marked as Exhibit-XI. Carbon copy of application given to the C.J.M., Motihari for remand of the appellant in the present case from another case in which he was already in custody by Sub-Inspector of Police. D.N. Thakur (PW- 15) is marked as Exhibit-XII and another carbon copy of application submitted to the C.J.M., Motihari by the I.O. in this regard has been marked as Exhibit- XII/I. The blood stained bhujali, blood stained dhoti, some blackish crust, one cloth piece said to be underwear piece, bearing radish brown stains, a gamachha (a kind of towel) bearing radish brown stains, the Genara (a kind of cloth made bed) bearing redish brown stains were all sent in separate paper packets to the office of the Director, Forensic Science Laboratory, Patna for serological analysis in the Forensic Science Laboratory. The description of articles sent for forensic science test have been marked Exhibit-XIII. The serological examination report has been brought on record and marked as Exhibit-XIII/I. All the articles sent for analysis contained human blood as per the report submitted by the F.S.L. 7. On conclusion of investigation, the Investigating Officer (PW 12) submitted charge sheet against the appellant, pursuant to which, cognizance of the offence was taken and the case was committed to the Court of Sessions for trial. The trial Court framed charge against the appellant under Section 302 of the Indian Penal Code for committing murder of the deceased Baidyanath Prasad. The appellant did not plead guilty to the charge and claimed to be tried. The defence of the appellant is of innocence and false implication merely on suspicion due to previous grudge and enmity. The trial Court framed charge against the appellant under Section 302 of the Indian Penal Code for committing murder of the deceased Baidyanath Prasad. The appellant did not plead guilty to the charge and claimed to be tried. The defence of the appellant is of innocence and false implication merely on suspicion due to previous grudge and enmity. The further defence is that Baidyanath Prasad was killed by some unknown person in the preceeding night which was not seen by anyone and the Khukhari (Ext XI) is not the weapon by which the offence is alleged to have been committed. 8. In order to substantiate the charge, the prosecution examined 15 witnesses in all. PW 1 Mohan Prasad Gupta is a neighbour of the informant and the deceased. He reached at the place of occurrence on shouting of the informant and found the dead body of the deceased lying a pool of blood. He came to know regarding name of the assailant from the informant. He was a witness to the seizure of blood stained of underwear, dhoti., gamchha and Genara, which were seized by the police at the place of occurrence. He proved his signature on the seizure list which was marked as Exhibit-I. He has also stated that the Khukhari and its case were recovered by the I.O. in his presence from a municipal drain and were seized in his presence. He became a witness to the said seizure also and proved his signature on the seizure list which was marked as Ext I/I. In cross-examination, he has stated that the municipal drain from where the Khukhari, was seized, was at a distance of 200 yards from the house of the informant. 9. PW 2 Anil Kumar is also a neighbour of the informant. He has stated in his deposition that while he was walking in the morning on 30.4.1986 outside his house, he saw the appellant running away with a chhura in his hand, which he threw in the drain and fled away. The Investigating Officer had examined him in course of investigation and the Khukhari and its case were recovered from the municipal drain in his presence. A seizure list was prepared in this regard to which he became one of the witness. He has proved his signature on the seizure list which was marked as Exhibit I/II. 10. The Investigating Officer had examined him in course of investigation and the Khukhari and its case were recovered from the municipal drain in his presence. A seizure list was prepared in this regard to which he became one of the witness. He has proved his signature on the seizure list which was marked as Exhibit I/II. 10. PW 3 Sanjay Kumar is son of the informant and the deceased as well as cousin of the appellant. He has stated that at the time of occurrence, he together with his relative Arun Kumar (PW 8) was sleeping on the roof of the third floor of the house. On the second floor, his parents used to live. His mother and sister shouted from the courtyard of the ground floor, on which, he went down-stairs. His mother and sister were crying and uttering that the appellant was running away after killing Baidyanath Prasad. When he came in the courtyard, he found his father squirming on the floor in a pool of blood. His neck bore sharp cut injury. He found blood scattered all around the courtyard. Immediately, thereafter, his father died. His statement was recorded by police. 11. PW 4 Jagdish Prasad is elder brother of the deceased and uncle of the appellant. He has stated that late Sukhdeo Prasad had three sons. The deceased Baidyanath Prasad happens to be the second son of late Sukhdeo Prasad of village-Saphi situated within Turkouliya police station of East Champaran district. Jagdish Prasad himself was eldest son of late Sukhdeo Prasad and Vishwanath Prasad, who died after 1-1/2 year of the occurrence was his youngest brother. The appellant was eldest son of Vishwanath Prasad. The joint family of Sukhdeo Prasad including his three sons was possessed of lands and two houses, one at village-Saphi and another in Motihari town situated in mohalla-Bisatipatti. According to him, about 5 to 6 years ago a partition had taken place in the family as a result of which the lands and both the houses were partitioned among the three brothers in equal share. Some of the movable properties like, jeep, tractor, pumping set, tyre and cart, etc., were given to the deceased Baidyanath Prasad in lieu of which, he had to pay a sum of Rs. 25,000/- in cash to his youngest brother Vishwanath Prasad. The deceased Baidyanath Prasad claimed that he had paid the entire sum of Rs. Some of the movable properties like, jeep, tractor, pumping set, tyre and cart, etc., were given to the deceased Baidyanath Prasad in lieu of which, he had to pay a sum of Rs. 25,000/- in cash to his youngest brother Vishwanath Prasad. The deceased Baidyanath Prasad claimed that he had paid the entire sum of Rs. 25,000/- to his brother Vishwanath Prasad but it was not an admitted position. The appellant used to say that the deceased had not made payment of the entire due amount and Rs. 14,000 to 15,000 was still due to be paid. This issue was a bone of contention between the parties, as a result of which a discord was there between the deceased and the appellant. He has further stated that the appellant, who used to live at village-Saphi, was seen by him going to Motihari by cycle, carrying a ‘Jhola’ on 29.4.1986 in the evening and the appellant did not return back. He has further stated that prior to the occurrence, in question, the appellant had also assaulted him by means of chhura, as a result of which, he was not on talking terms with the appellant. PW 4 admittedly is not a witness to the incident in question. 12. PW 5 Vijay Kumar is also another son of the deceased and informant as well as cousin of the appellant. He has stated that on 30.4.1986 he was in village Saphi. He came to know there that his father was killed by the appellants. On receipt of the message, he rushed to Motihari where he reached at about 10.00 am. The Investigating Officer displayed a Khukhari to him and he told the Investigating Officer that it was the same Khukhari which the appellant used to keep beneath his pillow while sleeping. He found his father dead and his mother and sister disclosed him regarding the entire incident. 13. PW 6 Ashok Kumar Verma is a Photographer by profession. He has stated in his deposition that on 30.4.1986, the Officer-in- Charge of Motihari town police station ordered him to take photograph of the deceased in mohalla-Bisatipatti at Motihari. He took five photographs of the deceased from different angle. 13. PW 6 Ashok Kumar Verma is a Photographer by profession. He has stated in his deposition that on 30.4.1986, the Officer-in- Charge of Motihari town police station ordered him to take photograph of the deceased in mohalla-Bisatipatti at Motihari. He took five photographs of the deceased from different angle. He has proved the five neatives of the photograph, which were marked as material Exhibits-I, II, III, IV and V. He enlarged those negatives and the positives, were also proved by him, which were marked as material Exhibits-VI to X. 14. PW 7 Bindeshwari Prasad was an employee of Bharat Prasad, who owned a utensil shop in mohalla-Bisatipatti. On the relevant date and time of occurrence i.e. on 30.4.1986 in between 6-6.15 a. m. while he was brooming the said utensil shop, he saw the appellant running away in southern, direction with a Khukhari in his hand. 15. PW 8 Arun Kumar is a relative of the informant and the deceased. He was sleeping together with PW 3 Sanjay Kumar, son of the deceased on the roof of third floor of the house in the night of 29.4.1986. In the morning at about 6 a.m. on 30.4.1986, he heard shouting of the informant and her daughter Simple Kumari, who were crying that appellant was running away after slaughtering the deceased. PW 3 Sanjay Kumar went down stairs and PW 8 Arun Kumar saw the appellant running away with Khukhari in his hand from the rooftop of the house. He, thereafter, came down and found the dead body of the deceased. 16. PW 9 Chandrakala Devi is the informant and wife of the deceased. She has reiterated the facts narrated by her in the F.I.R. Apart from what has been stated in the F.I.R., she has also deposed that while the appellant was fleeing away, her daughter Simple Kumari (PW 11) caught hold of her collar but the appellant threatened her that she would also be killed. Simple Kumari, thereafter, out of fear released the appellant. She identified the Khukhari (material Exhibit-XI) in the Court. When the deceased died, she put the dead body on Genara (a kind of cloth made bed) in the verandah of the Courtyard. She has stated that the appellant was also facing criminal prosecution in Sitamarhi for assaulting his brother-in-law, and father-in-law. Simple Kumari, thereafter, out of fear released the appellant. She identified the Khukhari (material Exhibit-XI) in the Court. When the deceased died, she put the dead body on Genara (a kind of cloth made bed) in the verandah of the Courtyard. She has stated that the appellant was also facing criminal prosecution in Sitamarhi for assaulting his brother-in-law, and father-in-law. On this point the defence did not even cross-examine her and thus, the fact that the appellant was being prosecuted at Sitamarhi for causing assault upon his brother-in-law and father-in-law stood admitted. 17. PW 11 Simple Kumari is daughter of the informant and the deceased. When her deposition was recorded on 28th May, 1988, she was aged about 14 years, which means that, at the time of occurrence she was aged about 12 years. She has stated that in April, it was a morning school. She was coming down stairs for going to her school. Her mother was ahead of her. When she came down, she saw the appellant armed with Khukhari running away. She caught hold of the collar of the appellant but, on threatening, she released him and he ran away. The alleged Khukhari was stained with blood. She found her father dead in the courtyard. Her mother told her that the appellant had killed her father. 18. PW 10 is the doctor who conducted the post-mortem examination of the deceased in Sadar Hospital, Motihari on 30.4.1986 at 11.30 a.m. and issued the post-mortem report (Exhibit-2). 19. As noted above, PW 12 Mahesh Chandra Verma was the Police Inspector cum-Officer-in-Charge of Motihari Town police station, on 30.4.1986. He had recorded the fardbeyan (Exhibit-3) and investigated the case. He has stated that on 30.4.1986 at about 7.30 a.m., he had received information on telephone regarding the occurrence, on the basis of which, he had made an entry in the station diary which was numbered 834 dated 30.4.1986 (Exhibit-9), On receipt of the information, he went to the police station, recorded the fardbeyan on the basis of which formal F.I.R. was drawn by the Circle Inspector, B.P. Tiwary. The writing and signature of B.P. Tiwary on the formal F.I.R. was identified by him and marked as Exhibit-4. He prepared the inquest report at the place of occurrence. He has proved his writing and signature on the inquest report which was marked as Exhibit-5. The writing and signature of B.P. Tiwary on the formal F.I.R. was identified by him and marked as Exhibit-4. He prepared the inquest report at the place of occurrence. He has proved his writing and signature on the inquest report which was marked as Exhibit-5. He inspected the place of occurrence, seized incriminating articles and prepared the seizure lists. He had also prepared sketch map of the place of occurrence, recorded the statement of witnesses and ultimately submitted charge sheet in this case. 20. PW 13 Ram Pravesh Singh, a constable of Motihari town police station, has proved the station diary entry No. 834 dated 30.4.1986 which was marked as Exhibit-9 in this case. 21. PW 14 Kishundeo Singh is a Havildar, who was posted in Motihari Town police station in the year 1986. He has stated that on 11.5.1986, the Investigating Officer had handed him over one packet together with a letter to deliver the same in the Forensic Science Laboratory. 22. PW 15 Devendra Narain Thakur was an Additional Officer-in- Charge of Motihari town police station in the year 1986. He has stated that Mr. Mahesh Chandra Verma (PW 12) was the Officer-incharge of the police station and he was investigating the present case in obedience to his order. When, in course of investigation, it came to knowledge that the appellant was lodged in Sitamarhi jail, he went to Sitamarhi in order to take his remand in the present case. On 14.8.1986, he submitted an application in the Court of C.J.M., Sitamarhi, praying therein to remand the accused in the instant case. The learned Chief Judicial Magistrate had asked for a custody warrant from him. Thereafter, he came back to Motihari and filed an application in the Court, duly signed by Mahesh Chandra Verma. The appellant was, thereafter, remanded pursuant to the custody warrant issued by the Court. The carbon copy of both the applications, so filed, have been proved and marked as Exhibit-12 & 12/1 respectively. 23. The Investigating Officer (PW 12) has described the place of occurrence in his evidence which has remained unchallenged in material particulars throughout his cross-examination. According to him, the place of occurrence was three-storied pucca house of Baidyanath Prasad facing west, situated in mohalla-Bisatipatti. The courtyard of the house measured 7-1/2 ft. in length and 6-1/2 ft. in width. 23. The Investigating Officer (PW 12) has described the place of occurrence in his evidence which has remained unchallenged in material particulars throughout his cross-examination. According to him, the place of occurrence was three-storied pucca house of Baidyanath Prasad facing west, situated in mohalla-Bisatipatti. The courtyard of the house measured 7-1/2 ft. in length and 6-1/2 ft. in width. On the southwestern corner of the courtyard, he found a water tap where one ‘Lux soap’ was also found lying on the western verandah of the courtyard, which was 5 ft. in width. The dead body was found lying in a pool of blood. The blood was spread in an area of 47” from north to south and 20” from east to west on the north-western corner of the said verandah. The blood was also spread inside the courtyard in an area of 40” x 90” on its north-western corner. The blood was also found on the northern verandah of the said courtyard. The main exit door of the house was situated on the western verandah. One room situated on the north-eastern corner of the eastern verandah of the courtyard on the ground floor, was pointed out to him to be the room of the appellant. The southern verandah of the courtyard was 40" in width, over which staircase for going up-stairs was situated. The main exit door was situated just in front of that stair-case. Outside the hones, there was a road running from north to south. The Investigating Officer had also prepared rough sketch map (Exhibit-6) of the place of occurrence. 24. From the deposition of witnesses, it is apparent that the actual commission of murder of the deceased was seen by Chandrakala Devi (PW 9) alone. However, PW 11 Simple Kumari reached at the site immediately after the commission of murder and even managed to catch hold of the appellant who was armed with the weapon of crime carrying blood marks, but the appellant managed to escape after threatening her. PW 3 Sanjay Kumar and PW 8 Arun Kumar are the other two witnesses, who were present in the same house where the crime was committed. PW 3 Sanjay Kumar and PW 8 Arun Kumar are the other two witnesses, who were present in the same house where the crime was committed. PW 8 saw the appellant fleeing away with the weapon of crime from the roof of the third floor where he was sleeping and both PW 3 and PW 8 immediately came to know that it was the appellant who had committed murder of the deceased from the informant and PW 11 Simple Kumari., PW 2 Anil Kumar and PW 7 Bindeshwari Prasad are the two neighbouring persons who had seen the appellant running away with Khukhari in his hand immediately after the offence was committed. PW 2 Anil Kumar had also seen the appellant dumping the chhura in the drain, while running away after committing the offence. PW 4 Jagdish Prasad and PW 5 Vijay Kumar are the other two witnesses, who are brother and son of the deceased as well as uncle and cousin of the appellant respectively. PW 4 has narrated about the partition in the family and the fact that the appellant was having grudge against the deceased. PW 5 is admittedly a hearsay witness. The fact that the deceased Baidyanath Prasad was killed is not challenged by the appellant. 25. Learned counsel for the appellant submits that the prosecution case is doubtful on account of the fact that though the alleged occurrence is said to have taken place at 6 am on 30.4.1986 and the place of occurrence was at a distance of only 1 km from the police station as would appear from the formal F.I.R., there is no reasonable explanation as to why no one went to the police station to inform regarding the occurrence. 26. The further contention, in this regard, is that there is no evidence as to who gave the telephonic message. It is also contended that when so many persons saw the appellant running away after committing crime, none chased or caught him. Thus, it is contended that no one had seen the actual murder and merely on suspicion subsequently, when the police out of its own arrived at the place of occurrence, the fardbeyan was given implicating the appellant. 27. We find from the evidence of the Investigating Officer (PW- 12) that he got the information of the murder in question by telephone at 7.30 am on 30.4.1986. 27. We find from the evidence of the Investigating Officer (PW- 12) that he got the information of the murder in question by telephone at 7.30 am on 30.4.1986. He recorded it in station diary, which was numbered 834 date, 30.4.1986. The telephonic message received by PW 12 at the police station was cryptic in nature. The police in order to verify the truth of the information rushed immediately to the place of occurrence. Even, from the deposition of witnesses examined in course of trial, we find that several neighbouring persons had assembled at the place of occurrence upon shouting of PW 9 and PW 11, It is possible that someone out of the persons assembled might have given a call to the police. The murder had taken place inside the house. The delay in arrival of police at the place of occurrence was not inordinate. The family members, must be in a shock. In such circumstance, we find that actually there was no delay in institution of the present case. When the Witnesses who had seen the actual murder and the perpetrator of the crime and who narrated the entire incident to the police and has deposed in the Court in course of trial, the issue as to who informed the police by telephone regarding occurrence, becomes insignificant. Further the persons who saw the appellant fleeing away outside the house with Khukhari in his hand were not aware of the factum of murder and thus, there was no occasion for them either to chase him or to apprehend him. 28. It is further contended that the informant has named three persons in the fardbeyan as witness to the occurrence. They are Chandra Shekhar Pathak, Suresh Pathak and Arun Kumar. The two independent witnesses Chandra Shekhar Pathak and Suresh Pathak have not been examined. The prosecution has given no explanation for their non-examination. Thus, an adverse inference should be drawn against the prosecution. 29. We find that the informant in her fardbeyan has not stated that Chandra Shekhar Pathak and Suresh Pathak were witnesses to the actual commission of murder. They being neighbour, in the given circumstance of the case, might have arrived at the place of occurrence on shouting of the informant (PW 9) and her daughter Simple Kumari (PW 11). They could have, therefore, been hearsay witnesses on the matter. They being neighbour, in the given circumstance of the case, might have arrived at the place of occurrence on shouting of the informant (PW 9) and her daughter Simple Kumari (PW 11). They could have, therefore, been hearsay witnesses on the matter. When the informant (PW 9), who herself witnessed the murder of her husband being committed by the appellant deposed in the Court which finds corroboration from the evidence of Simple Kumari her daughter (PW 11), who immediately came behind her and who was present inside the house at the time of occurrence, non-examination of the aforesaid two witnesses in itself would not materially affect the prosecution case. Apart from PW 9 and PW 11, one of the named witnesses, namely Arun Kumar (PW 8) has substantially corroborated the testimony of P.Ws. 9 & 11. 30. The prosecution has examined witnesses to the occurrence of the incident who have stated as to how the incident had happened. They have also stated the manner in which, the crime was committed. Since the eye-witnesses were available and examined, there was no necessity of examining any other witness, inasmuch as, there is no necessity for the prosecution to multiply witnesses to prove and establish the prosecution case. There is no requirement in the law of evidence that any particular number of witnesses is to be examined to prove something. The evidence has to be weighed and not to be counted. The witnesses, who were examined, were relatives of the deceased and the accused and, therefore, there is no ground and reason why they should be disbelieved. There is also no reason why they would not speak the truth so to see that the actual guilty person is convicted. 31. It is further contended on behalf of the appellant that PW 4 Jagdish Prasad and PW 5 Vijay Kumar were admittedly present at village-Saphi when the occurrence took place. Though. PW 4 claimed that the appellant had left village-Saphi on 29.4.1986 in the evening on a bicycle for Motihari but, there is no evidence as to where he stayed in the night. Neither the “Jhola” nor the cycle was recovered by the Investigating Officer from the room of the appellant when the Investigating Officer inspected the place of occurrence. 32. PW 4 claimed that the appellant had left village-Saphi on 29.4.1986 in the evening on a bicycle for Motihari but, there is no evidence as to where he stayed in the night. Neither the “Jhola” nor the cycle was recovered by the Investigating Officer from the room of the appellant when the Investigating Officer inspected the place of occurrence. 32. We find that when there is direct evidence that the appellant was seen present in the house and he killed the deceased by Khukhari., the contention on behalf of the appellant regarding non-recovery of cycle or Jhola from the place of occurrence has got no significance. There is no dispute that the appellant was one of the co-sharer of the house in question. There is also no dispute that the appellant had his share in the house on the ground floor. PW 9 being an eye-witness to the clime and PW 2, PW 6, PW 7. PW 8 and PW 11 saw the appellant fleeing away with the weapon of clime in his hand, we find no force in the argument advanced on behalf of the appellant in this regard. 33. Advancing the argument learned counsel for the appellant submits that both PW 3 Sanjay Kumar (son of the deceased) and PW 8 Arun Kumar, a common relative claims that they slept on the roof of the third floor in the night of 29.4.1986 and in the morning, they heard shouting of the informant. Simple Kumari for help, as the appellant was running away after killing the deceased. It is contended that PW 3 Sanjay Kumar has not claimed that he could see the appellant but, PW 8 Arun Kumar claimed to have seen the appellant fleeing away with Khukhari. According to him, if PW 3 Sanjay Kumar could not see the appellant, it was impossible that PW 8 Arun Kumar could have seen the appellant fleeing away. We find no force in this submission. PW 3 has clearly stated in his deposition that on hearing cry for help, he rushed down-stairs. In that situation, when he was coming down through the stairs, it must have taken some time in reaching to the courtyard on the ground floor. By that time the appellant had taken to his heels. The evidence is that PW 8 did not come down. In that situation, when he was coming down through the stairs, it must have taken some time in reaching to the courtyard on the ground floor. By that time the appellant had taken to his heels. The evidence is that PW 8 did not come down. He remained on the roof top and from there he saw the appellant running away with Khukhari in his hand. There is no ambiguity in evidence and the evidence in this regard seems to be quite natural. PW 8 in the given situation had ample opportunity to see the appellant running away. 34. It is further contended that PW 9 has stated that on being asked to bring oil, she went up-stairs and brought oil in her steel katori (utensil) which she threw on the ground but, the I.O. did not find either the Katori or even oil on the ground. We find that the incident took place at 6 a.m. the Investigating Officer reached at the place of occurrence at 7.30 a.m., no one knows as to whether the katori remained in the courtyard or was removed by someone. No cross-examination in this regard has been done. No question has been put in this regard either from the I.O. or from the informant (PW 9) and, thus, in our opinion, the defence cannot take benefit of this fact. 35. It is also submitted on behalf of the appellant that the name of Simple Kumari has not been given in the fardbeyan. Had she been present at the time of occurrence, her name must have come in the fardbeyan of the infonnant. In our opinion, the F.I.R. is not an encyclopedia which should contain each and every minute detail of the occurrence. There is no dispute that PW 11 Simple Kumari is the daughter of the deceased and the informant. She was aged 12 years only at the time of occurrence. It is presumed that she must be there along with her parents, who were her natural guardian. 36. Learned counsel for the appellant contends that PW 2 Anil Kumar has stated before police that he had seen the appellant throwing chhura in the municipal drain. In course of deposition, he has admitted that chhura is a weapon different from Khukhari. The weapon recovered from municipal drain is Khukhari and not chhura. Thus, it is submitted that PW 2 is not a reliable witness. In course of deposition, he has admitted that chhura is a weapon different from Khukhari. The weapon recovered from municipal drain is Khukhari and not chhura. Thus, it is submitted that PW 2 is not a reliable witness. 37. In our opinion, of course chhura and Khukhari are distinct weapons but, in the given circumstance, when a person is fleeing away with a Khukhari in his hand, the same can mistakenly be inferred to be a chhura by a person who may not be acquainted with the crime. Thus, simply because PW 2 Anil Kumar narrated before the police that he saw the appellant running away with chhura in his hand he cannot be disbelieved. Both PW 1 and PW 2, who were seizure list witnesses seems to be truthful and reliable. They had no animosity with the appellant. They are independent witnesses. The seized Khukhari was also sent to the Forensic Science Laboratory and the serological analysis report confirmed that the same contained human blood. The weapon of crime was identified by PW 9 in Court. In the opinion of doctor who conducted the post-mortem examination, injuries found on the person of the deceased could be caused by the weapon used in the offence. 38. It has been contended on behalf of the appellant that there are two witnesses to the fardbeyan. They are Arun Prasad and Vijay Kumar. The fardbeyan is alleged to have been recorded at 7.45 a.m. on 30.4.1986. PW 5 Vijay Kumar has been examined in this case and he has categorically stated that on 30.4.1986 he was in village Saphi. He rushed to Motihari from village Saphi on receipt of the message regarding murder of his father. He reached Motihari at about 10 a.m. Thus, it is contended that Vijay Kumar could not have, signed as a witness to the fardbeyan which was recorded at 7.45 a.m. at the residence of the informant in Motihari town. Prima facie, the argument seems to be attractive. However, when we look to the deposition of PW 5 Vijay Kumar, we find that neither in his examination-in-chief he has claimed to be a witness to the fardbeyan nor in cross-examination the defence has put any question to him in this regard. Prima facie, the argument seems to be attractive. However, when we look to the deposition of PW 5 Vijay Kumar, we find that neither in his examination-in-chief he has claimed to be a witness to the fardbeyan nor in cross-examination the defence has put any question to him in this regard. We further notice that no question was put to the informant Chandrakala Devi (PW 9) or to the Investigating Officer, Mahesh Chandra Verma (PW 12) who had recorded the fardbeyan in this regard. Thus, it is not clear as to whether it was PW 5 who had testified the fardbeyan or there was some other Vijay Kumar who had signed as witness to the fardbeyan. The signature of the witnesses, who signed over the fardbeyan has not been proved in course of trial. It is important to note here that the informant has not stated in her fardbeyan that her son Vijay Kumar was present in the house. As per the fardbeyan, several persons of the locality had assembled at the place of occurrence on shouting made by the informant and others. It might be possible that someone in the locality named Vijay Kumar would have testified the fardbeyan. The defence cannot take any benefit in this regard specially when PW 5 has not claimed either to be witness of the F.I.R. or to be a witness to the incident. PW 5 seems to be a truthful witness 39. Lastly but most importantly, it is contended that the medical evidence is totally inconsistent with the ocular testimony of the sole eye-witness (PW 9). Though, PW 9 has stated in clear terms that the victim sustained two blows struck by the appellant on his person by means of Khukhari hut the doctor Chandra Shekhar Prasad (PW 10), who conducted the post mortem examination on the dead body of the deceased, has clearly contended in cross-examination that the injuries were the result of one blow. The doctor has further contended that the time elapsed since death of the deceased was within 36 hours (approximately). The post mortem examination was conducted on 30.4.1986 at 11.30 a.m. i.e. within 5-1/2 hours of the alleged incident of occurrence. In cross-examination, the doctor categorically stated that if death occurs within 12 hours of the post mortem examination, he may have given his opinion, accordingly. The post mortem examination was conducted on 30.4.1986 at 11.30 a.m. i.e. within 5-1/2 hours of the alleged incident of occurrence. In cross-examination, the doctor categorically stated that if death occurs within 12 hours of the post mortem examination, he may have given his opinion, accordingly. Thus, it is contended that the death was certainly not within 12 hours and it may have extended up to 36 hours. If this version of the doctor is to be believed then the prosecution case becomes highly doubtful. According to the appellant, the deceased was actually killed by some unknown person in the night itself and not in the morning as alleged by the prosecution. 40. It has also been argued that the informant has made a contradictory statement in Court that her husband was hit by the accused by means of Khukhari on his neck twice because her case in fardbeyan is that the accused hit her husband with Khukhari twice with intention to kill him, but, both the blows did not hit him on his neck. The fardbeyan goes to suggest that as a result of those blows half of the neck of her husband was cut. He also sustained injuries on his scapula. 41. We have given careful consideration to the argument advanced on behalf of the appellant with regard to inconsistency in the statement of informant as well as inconsistency highlighted between the ocular testimony and medical evidence. Of course, there is minor inconsistency in the statement of the informant in this regard. But, both in her fardbeyan and in her evidence in Court, she is categorical in saying that her husband was hit by Khukhari twice. At best, she could be held exaggerating her version in Court in stating that the appellant gave both the blows to her husband by Khukhari on his neck. The fact that the husband of the informant sustained two Khukhari blows finds support from the inquest report (Exhibit-5) prepared by the Investigating Officer immediately after recording the fardbeyan. The Investigating Officer found neck of the deceased cut from behind and another injury was found on his scapula. The Investigating Officer was examined in Court. He has categorically stated that he prepared the inquest report (Exhibit-5) with regard to dead body of Baidyanath Prasad just after recording the fardbeyan. The Investigating Officer found neck of the deceased cut from behind and another injury was found on his scapula. The Investigating Officer was examined in Court. He has categorically stated that he prepared the inquest report (Exhibit-5) with regard to dead body of Baidyanath Prasad just after recording the fardbeyan. He had also got the place of occurrence, photographed by Ashok Kumar Verma (PW 6), PW 6 fully corroborated him and stated that he took pictures of the deceased from five different angles. The negatives and positives of those photographs have been brought on record and marked as material Exhibit-I to V and material Exhibit-VI to X. We have also seen the photographs of the deceased taken at the place of occurrence duly proved by PW 6. We find two injuries on the person of the deceased, one on the right side of the neck and another on his left scapular region only a little away from his back bone. Both the injuries are in close proximity. 42. We find the informant’s version credible and trustworthy in the background of the evidence so collected and produced in Court. The medical opinion of the doctor cannot be given undue weight over the eye-witnesses account, if the same is found credible and trustworthy. The alleged discrepancy can also not be said to be very vital, as ocular evidence cannot be brushed aside only because to some extent, it is not in consonance with the medical evidence. 43. So far as the time elapsed since death of the deceased is concerned, the evidence of the doctor does not fit in with the time of murder alleged by the prosecution. The positive evidence of eye-witnesses in this regard cannot be doubted simply because the doctor has opined otherwise. The doctor’s version does not seem to be correct in this regard. It is mentioned at page 125 of Modi’s Jurisprudence and Toxicology Edn. 1977 that in general rigor mortis sets in 1 to 2 hours after death, is well developed from head to foot in about 12 hours, is maintained for about 12 hours and passes off in about 12 hours. The doctor, who conducted the post-mortem examination, found rigor mortis present as would appear from post-mortem report (Exhibit-2). In his opinion, he has given the time elapsed since death to be within 36 hours approximately. The doctor, who conducted the post-mortem examination, found rigor mortis present as would appear from post-mortem report (Exhibit-2). In his opinion, he has given the time elapsed since death to be within 36 hours approximately. While, being examined in Court, he has not stated a word regarding rigor mortis found on the person of the deceased. It is not known as to whether the rigor mortis found on the person of the deceased had just set in or was well-developed. There is no cross-examination also on this point. The doctor has simply stated that if death occurs within 12 hours of post mortem examination, he gives his opinion accordingly. 44. It is a settled legal proposition that the ocular evidence would have primacy unless it is established that oral evidence is totally irreconcilable with the medical evidence. More so, the ocular testimony of witness has a greater evidentiary value vis-a-vis medical evidence; when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence if proved, the ocular evidence may be disbelieved. So far as the opinion of the doctor regarding time elapsed since death in the present case is concerned, it does not mean that doctor Chandra Shekhar Prasad (PW 10) was able to fix any exact time of death. In case of Mangu Khan v. State of Rajasthan, since reported in (2005) 10 SCC 374 the Hon’ble Supreme Court examined a similar issue wherein the post mortem report mentioned that the death had occurred within 24 hours prior to post mortem examination. In that case, such an opinion did not match with the prosecution case. The Apex Court examined the issue elaborately and held that physical condition of the body after death would depend on a large number of circumstances/factors and nothing can he said with certainty. In determining the issue, various factors such as age and health condition of the deceased, climatic and atmospheric conditions of the place of occurrence and the conditions under which the body is preserved, are required to be considered. There has been no cross-examination of the doctor on the issue as to elicit any of the material fact on which a possible argument could be based in this regard. There has been no cross-examination of the doctor on the issue as to elicit any of the material fact on which a possible argument could be based in this regard. The acceptable ocular evidence cannot be dislodged on such hypothetical basis for which no proper grounds were made. Similarly, in case of Baso Parasad v. State of Bihar, since reported in (2006) 13 SCC 65 the Hon’ble Supreme Court while considering similar issue held that exact time of death cannot be established scientifically and precisely. 45. The prosecution case is that the murder was committed on 30.4.1986 at about 6 a.m. Admittedly, the post-mortem examination on the dead body of the deceased was held at 11.30 am i.e. within 5.30 hours of the death. The defence suggestion given to the informant is that the deceased was done to death by some unknown criminal in the preceeding night and out of suspicion the appellant was implicated in the case. The post mortem examination report further goes to suggest that the bladder of the deceased was found empty. If the death would have been caused in the night as suggested by the defence, the stomach must have contained some semi-digested or digested food. The consistent case of the prosecution is that in the morning, the deceased was going to take bath in the courtyard and had asked his wife to bring oil. It is a matter of common experience that people take bath only after emptying the stomach in the morning. Thus, also, we find the medical evidence to be more consistent with the prosecution case. There is no reason to discredit the evidence of the informant Chandrakala Devi and her daughter Simple Kumari, whose presence at the place of occurrence was natural and could not be doubted. We find the ocular testimony stood corroborated by the medical evidence. There could be no doubt in the prosecution case regarding the manner in which the incident happened. The case, of prosecution by recovery of blood stained articles from the place of occurrence, the recovery of Khukhari from the drain which is said to be the weapon of crime, the serological report containing the articles so seized and sent to it contained human blood gives strength to the prosecution case. The case, of prosecution by recovery of blood stained articles from the place of occurrence, the recovery of Khukhari from the drain which is said to be the weapon of crime, the serological report containing the articles so seized and sent to it contained human blood gives strength to the prosecution case. The Khukhari in question was duly identified by the informant in course of trial, stands proved and, therefore, there could be no doubt with regard to time and place of occurrence and also regarding the weapon used in the assault. 46. It is contended on behalf of the appellant that there is some discrepancy in the statement of prosecution witnesses which has been noticed by the trial Court in its judgment. We find that the discrepancies noticed by the trial Court are of no significance at all. PW 9 Chanctrakala Devi and PW 11 Simple Kumari were found to be natural eye-witnesss, who were present at the place of occurrence on the fateful day and time of occurrence. They were wife and daughter of the deceased and they would rope in only the culprit to be punished and will not rope in someone else, who is not at all involved in the incident. The minor discrepancy appearing in the evidence is insignificant and immaterial to discard the trustworthy testimony of P.Ws.- 9 and 10, P.Ws. - 9 and 11 have been duly corroborated by hearsay account of PW 3 Sanjay Kumar, son of the informant and PW 8 Arun Kumar, a common relative. Both of them were present in the house on the fateful day and time of occurrence. 47. The prosecution case further stands corroborated by hearsay account of the occurrence given by PW 1 Mohan Prasad Gupta. The second part of the allegation of witnessing the appellant fleeing away immediately after committing the crime with the incriminating Khukhari in his hand stands corroborated by PW 2 Anil Kumar and PW 7 Bindeshwari Prasad. PW 4 Jagdish Prasad, who is own uncle of the appellant and elder brother of the deceased has also thrown light on the motive for the alleged incident. PW 4 Jagdish Prasad, who is own uncle of the appellant and elder brother of the deceased has also thrown light on the motive for the alleged incident. We also notice the fact that when PW 9 Chandrakala Devi stated in her chief that the appellant was also facing prosecution in a case of assault caused by him upon his brother-in-law and father- in-law, no cross-examination was made by the defence in this regard. While, being examined under Section 313 Cr. P.C., the trial Court put a question. referring to the deposition of PW 4 Jagdish Prasad and asked from the appellant that prior to the incident he had also assaulted his uncle Jagdish Prasad by chhura, as a result of which, they were not on talking terms. The answer to the question came from the appellant in the affirmative. Though, these facts are not relevant for determining the guilt of the appellant in the present case, but, the fact that even prior to the alleged incident, he had inflicted chhura blow upon his eldest uncle and was also involved in assault upon his father-in-law and brother-in-law certainly indicates towards the fact that the appellant was a man of desperate character. 48. We have heard the parties and appreciated the evidence on record. We find no substance in the arguments advanced on behalf of the appellant. 49. The appeal is devoid of any merit and is accordingly dismissed. The bail bonds of the appellant is, hereby, cancelled and he is directed to surrender before the Court below in order to serve out the remaining sentence. Navaniti Prasad Singh, J.-I agree. Appeal dismissed.