JUDGMENT (Per: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI) 1. Appellants Harminder Mandal, Pancha Mandal @ Pancha Nand Mandal, Prakash Mandal @ Jai Prakash Mandal, Mangan Mandal (since deceased), Dhanraj Mandal, Sharda Devi, Talasho alias Tarawati Devi have been found guilty for an offence punishable under Section 302/149 and been directed to undergo R.I. for life for offence under Section 201 of the IPC and they have been sentenced to undergo R.I. for five years each under Section 148 IPC no separate sentence has been awarded. Harminder Mandal, Pancha Mandal @ Pancha Nand Mandal, Mangan Mandal (since deceased), Dhanraj Mandal have separately been held guilty for offence under Section 27 of the Act but no separate sentence was passed and further direction was that the sentences would run concurrently vide judgment dated 29.01.1988 passed by Fourth Additional Sessions Judge, Bhagalpur in Sessions Trial No.203 of 1986 / 11 of 1987. Aggrieved have filed instant appeal. 2. PW-8, Khokha Mandal gave his fardbeyan (Exhibit-5) on 05.10.1985 at village-Mirachak near the house of Narayan Mandal along with his brother-in-law Laxman Mandal, co-villagers Ganesh Mandal, Dibbu Tanti, Anirudh Tanti, Tanik Tanti, Sambhu Prasad Tanti, Subodh Mandal disclosing therein that on the same day at about 07:00 AM he along with Dibbu Tanti, Ganesh Mandal, Anirudh Tanti, Tanik Tanti along with Ramdas Mandal, Mukhiya had gone to the house of Arjun Pandit on tea and about 08:30 AM the proceeded towards brick-kiln through Mirachak village. At about 08:45 AM when they came in front of house of Naresh Mandal, Harminder Mandal came and asked Mukhiya to stop which they refused. In the midst thereof, Pancha Mandal @ Pancha Nand Mandal, Prakash Mandal @ Jai Prakash Mandal, Mangan Mandal , Dhanraj Mandal all armed with country made pistol save and except Prakash Mandal @ Jai Prakash Mandal who was armed with Garasi came and chided them. Thereafter, they directed to leave the place. Harminder Mandal shot at Mukhiyajee which struck him. Mukhiya Ramdas Mandal, sleeping in the house of Karu Mandal, to save his life got the door bolted from inside. Thereafter, all the accused persons broke open the door, intruded inside the house and assaulted Mukhiyajee with Garasi, fat and firing. Thereafter, Harminder Mandal dragged Mukhiyajee from the house of Karu to his own house where his wife Sharda Devi and sister Talasho alias Tarawati Devi murdered him by giving Garasi blow. Thereafter, all the accused persons broke open the door, intruded inside the house and assaulted Mukhiyajee with Garasi, fat and firing. Thereafter, Harminder Mandal dragged Mukhiyajee from the house of Karu to his own house where his wife Sharda Devi and sister Talasho alias Tarawati Devi murdered him by giving Garasi blow. They began to carry the dead body of Mukhiyajee towards river the Ganges but seeing the persons rushing from brick-kiln, miscreants fled away leaving the dead body. During said course sister of Harminder Mandal, namely, Talasho alias Tarawati Devi was apprehended. There was blood stain over her hand, body as well as over the cloth. Then Dibbu Tanti, lifted dead body of Mukhiyajee in front of his house. The motive for the occurrence has been shown to be prevailing land dispute amongst the parties. 3. After registration of the case, investigation was taken up and after completion of the same charge sheet was submitted whereupon cognizance was taken. Appellants were put on trial after commitment whereunder they have been convicted and sentenced in the manner as referred above. Hence this appeal. 4. Defence case as is evident from the mode of cross-examination as well as settlement recorded under Section 313 of the Cr.P.C., is of complete denial of the occurrence. Plea of innocence as well as false implication in the background of prevailing animosity amongst the parties have also been taken up. Defence has also exhibited certain documents. No D.W. has been examined. 5. While assailing the judgment of conviction and sentence, it has been argued on behalf of appellants that the judgment impugned suffers from conjectures and surmises. To support the same it has been submitted that right from PW-1 the prosecution had given a gobye to the narration as pleaded by the informant in his fardbeyan and has given a new story and on account thereof there happens to be presence of contradiction on material points which has properly been shown by the Investigating Authority. As such, it has been pleaded that shifting from original version without having any allegation to be against the police official to the extent of collusiveness or defective investigation makes the status of the prosecution witnesses who have claim to be an eye witness to occurrence, unreliable, untrustworthy as well as un-credible. As such, it has been pleaded that shifting from original version without having any allegation to be against the police official to the extent of collusiveness or defective investigation makes the status of the prosecution witnesses who have claim to be an eye witness to occurrence, unreliable, untrustworthy as well as un-credible. It has further been submitted that having deflected from the fardbeyan, the prosecution had added presence of so many accused at the initial stage of occurrence itself as well as also introduced so many new facts and in the aforesaid background no investigating proceeded in that manner to test veracity of the prosecution causing prejudice to the interest of appellants. Hence, the judgment impugned also suffers from the illegality. 6. It has further been argued that the objective finding of the I.O. is not going to support the prosecution version as flashed during course of trial as well as on account of presence of vital contradiction making the prosecution case unreliable. Apart from this, it has also been argued that all the witnesses belong to one group having annoyance with the appellants, hence their status apart from falling under interestedness is liable to be rejected on account of being inimical. 7. In the aforesaid backdrop, it has evident that the prosecution had failed to substantiate genesis as well as manner of occurrence as initiated as per fardbeyan hence the ultimate result, which the learned trial court would have given rejection of the law prosecution case. 8. On the other hand, the learned Additional Public Prosecutor while refuting the submission raised on behalf of appellants submitted that after going through the evidence on record it is manifest that neither the genesis of occurrence nor the manner of occurrence has been changed. Even the place of occurrence also remained in tact. Therefore, there happens to be no infirmity persists in the investigation as well as its conclusion. Certain variance in the evidence of witnesses are natural on account complicity of large number of accused persons during commission of the crime. 9. It has further been submitted that witnesses are very specific with regard to part played by individual accused during course of commission of crime which further finds support from the medical evidence. Certain variance in the evidence of witnesses are natural on account complicity of large number of accused persons during commission of the crime. 9. It has further been submitted that witnesses are very specific with regard to part played by individual accused during course of commission of crime which further finds support from the medical evidence. As such, it has been submitted there happens to be no infirmity in the prosecution case and in likewise manner in the judgment of conviction and sentence passed by the learned trial court. 10. In order to substantiate its case the prosecution had examined altogether twelve PWs out of whom PW-1 is Shambhu Prasad Tanti, PW-2 is Bimla Devi, PW-3 is Subodh Mandal, PW-4 is Tanik Tanti, PW-5 is Mohan Pandit, PW-6 is Dhibu Tanti, PW-7 is Ganesh Prasad Mandal, PW-8 is Khokha Mandal, PW-9 is Anirudh Tanti, PW-10 is Dr. Kailash Jha, PW-11 is Bindeshwari Bhagat and PW-12 is Sudhir Kumar as well as had also exhibited Exhibit-1 is signature of Subodh Mandal over statement under Section 164. Exhibit-2 Series happens to be Signature of witnesses over respective seizure list, Exhibit-3 Postmortem report, Exhibit-4 SD Entry No.81 dated 05.10.1985, Exhibit-5 fardbeyan, Exhibit-6 formal FIR, Exhibit-7 inquest report, Exhibit-8 Series Different Seizure List, Exhibit-9 Letter address to Serologist, Exhibit-10 Serologist Report, Exhibit-10/1 Chemical Examination Report, Exhibit-11 Series Signature of respective witnesses over statement under Section 164 Cr.P.C. There happens to be material Exhibit-I Garasi, Exhibit-II Towel, Exhibit-III blood stain Sari. Defence had also exhibited Exhibit-A Series Charge sheet in connection with GR Case No.1073/69, G.R. No.692/85 respectively, Exhibit-B- C.C. of order of framing of charge sheet against Laxman Mandal and others, Exhibit-C – C.C. of order dated 11.01.1984 relating to Nath Nagar P.S. Case No.222 of 1983, Exhibit D- Commitment order dated 05.12.1982. 11. Before coming to the ocular evidence, first of all the evidence of doctor is to be seen to ascertain the cause of death. 1) Sharp cuts 3 in number horizontally on the anterior part of neck. Siza was 41 x 2” x 3/4" at the level of 3rd, 4th and 5th Survical vertibra, sharp out on neck soft tissue up to bone. 2) Sharp cut two wounds on right root of neck size 41/2” x 1’ at 6th Survical vertibra up to half body. 3) Sharp out two wounds on the right shoulder joint 5” x 2” x bone deep. 2) Sharp cut two wounds on right root of neck size 41/2” x 1’ at 6th Survical vertibra up to half body. 3) Sharp out two wounds on the right shoulder joint 5” x 2” x bone deep. 4) Multiple incised wounds on left arm size 1” to 3” long then into ½” x 1” x muscle. 5) Sharp cut wound 11/2” x 1” x skull bone at right perital imminence and a cut ½” x 1/6” on skull below the wound no.5. 6) Five arm oval wound of entry ½” x 1/3” chest cavity at the sixthinter costal space on right side chest 11/2” right from mind line. 7) Fire arm wound of exit with everted margin in the 8th inter costal space size 1/3” x ½” x chest cavity on right side back 4” right to mid line. The projectile passed entero posteriorly from injury no.6 then lacerated lower part of right lung, then lacerated right side of dome of Diaphraga, then posteriorly passed to lower part of right lung, then passed through injury no.7 out of one. 8) Small multiple superficial sharp cut wounds on abdomen size ½” x 1” x 1/10” interiorly on abdomen. In the opinion of the doctor injury no.1 and 6 were found in ordinary course of nature to be sufficient cause death. Save and except non-presence of charring or blackening mark around the injury no.6, the defence could not be able to sat testimony. From Exhibit-7, the inquest report, it is evident that there is no description with regard to any kind of apparel being worn by the deceased at his upper part of body covering the chest nor any of the PW had disclosed so. The infirmities on this score is to be discussed at the later part of the judgment. However, the fact remains that apart from firearm injury which was also found to be fatal, several injuries caused by sharp cutting weapon along with bruise has been found over the dead body of deceased Mukhiyajee and which has been found to be sufficient for causing death. 12. However, the fact remains that apart from firearm injury which was also found to be fatal, several injuries caused by sharp cutting weapon along with bruise has been found over the dead body of deceased Mukhiyajee and which has been found to be sufficient for causing death. 12. From the fardbeyan certain material facts are visible as near the house of Naresh Mandal the deceased was intercepted by appellant Harminder Mandal solely who was subsequently joined by other male accused, namely, Pancha Mandal @ Pancha Nand Mandal, Prakash Mandal @ Jai Prakash Mandal, Mangan Mandal , Dhanraj Mandal who except Prakash were armed with firearm while Prakash was armed with Garasi. The first firing was made at the deceased by Harminder Mandal. Thereafter, the deceased was brutally assaulted inside the house of Karu by the aforesaid accused persons by means of firearm as well as Garasi and from there deceased was dragged to the house of Harminder Mandal where two female accused Sharda and Talasho pushed him. Therefore, presence of Sharda and Talasho as per fardbeyan happens to be at the fag end of the occurrence without having their presence at the house of Karu in front of house of Naresh. 13. PW-1 aged about 13 years had deposed that while he was playing in a Gali near the house of Naresh Mukhiyajee, Ramdas Mandal, Anirudh Tanti, Tanik Tanti, Ganesh Mandal, Khokha came. Harminder came and directed Mukhiyajee to sit which followed with scuffle in between Ganesh Mandal and Dharmendra. In midst thereof, the others took Mukhiyajee inside the house of Karu. Prakash came and assaulted Ganesh with pistol. Mangan, Dhanraj, Pancha, Talasho Devi, Sharda Devi breaking door of Karu and then Harminder, Mangan, Pancha, Dhanraj, Prakash, Talasho and Sarda went inside house, dragged Mukhiyajee to Aushara and threw Mukhiyajee on ground and then Harminder shot at his chest. He rushed to brick-kiln of Mukhiyajee and informed the presence. On his return he came to Bathan of Harminder where he saw neck of Mukhiyajee choked. He had also found Talasho Devi as well as wife of Harminder cutting neck of Mukhiyajee by Garasi. He further disclosed that his settlement of record before the police as well as before Magistrate. He rushed to brick-kiln of Mukhiyajee and informed the presence. On his return he came to Bathan of Harminder where he saw neck of Mukhiyajee choked. He had also found Talasho Devi as well as wife of Harminder cutting neck of Mukhiyajee by Garasi. He further disclosed that his settlement of record before the police as well as before Magistrate. During course of examination his conduct has been tested so far names of female are concerned and is evident he failed to disclosed names of wife of Khokha, name of his aunt or name of any female of his village. In para-24 has disclosed that when Harminder had come and directed Mukhiyajee to halt, there was scuffle in between Ganesh and Harminder. The aforesaid incident was going on outside the house of Karu but none of the family members of Karu came out. He further disclosed that having entries of Mukhiyajee inside the house of Karu, Mukhiyajee close the door. He had not gone inside Anirudh Tanti, Khokha remained outside. In para-2, 8 he had disclosed after closure of the door Prakash came and shot at Ganesh. At that very time Mangan, Pancha, Dhanraj, Talasho, Sharda came out of whom Talasho was armed with Garasi while Sharda was armed with sickle, Mangan, Pancha, Dhanraj were armed with pistol who went inside after breaking the door. Then at para-29 that Sarda and Talasho have broken the door. He had not gone inside. Para-21, 36, 37, 39 happens to be contradiction. In para-35 he had disclosed that he on his own had gone to Bathan of Harminder. He is not remembering the time. Then disclosed that he had gone next day. This witness, as is evident from the narration of the fardbeyan, picturised the scenario in different way by introducing scuffle in between Ganesh and Harminder. Firing made by Prakash at Ganesh and further introducing Talasho and Sarda also member of an unlawful assembly who intruded inside the house of Karu. Apart from this the witness is of delicate age and during the intervening period there was every possibility of his tutoring on account of the fact that he had deposed near about one and half years from the date of occurrence. 14. Apart from this the witness is of delicate age and during the intervening period there was every possibility of his tutoring on account of the fact that he had deposed near about one and half years from the date of occurrence. 14. It is also evident from his deposition that he does not claim himself to be witness of the occurrence came after firing made by Harminder inside the house of Karu along with the fact how the dead body of Mukhiyajee was lifted to Bathan of Harminder. 15. PW-2 is the wife of Karu. She had deposed that on the alleged date and time of occurrence while she was crushing spice at her Portico she saw four or five persons got Mukhiyajee pushed inside her Courtyard. Then thereafter she closed the door. She further gave passage to the Mukhiyajee to a room. Subsequently she saw Harminder, Prakash, Mangan, Pancha, Dhanraj, Talasho and Sharda came inside after breaking the main door. Thereafter they got the arm opened and dragged the Mukhiyajee to Portico where they threw Mukhiyajee and then caught hold. Thereafter, Harminder shot at his chest while Talasho and Sharda began to cut. Others have caught hold Mukhiyajee. Thereafter all the accused persons took away Mukhiyajee. After sometime Talasho came and began to scratch blood which was protested by father. Her son-in-law was present but had escaped during course of occurrence. She has also snatched away Karahi from Talasho. During cross-examination she had deposed under para-17 that the persons who got Mukhiyajee inside her house did not come inside. Accused persons have not followed them simultaneously but came subsequently. In para-18 she had deposed that she did not raise cry nor she was in a position to prevail them. In para-21 she had disclosed that she had heard sound of firing only once when it was fired over chest of Mukhiyajee. At para-25 had disclosed that when the accused persons came inside after opening the door, she began to raise alarm in her Courtyard but none had come. Nobody came even after departure of the accused persons. In para-29 she had disclosed that when the accused persons dragged Mukhiyajee from room to Portico she had not left the place out of fear. She had not raise alarm. She remained standing at the place where Mukhiyaji was assaulted. Sarda Devi was armed with sickle had struck at “Dhauna” of Mukhiyajee. In para-29 she had disclosed that when the accused persons dragged Mukhiyajee from room to Portico she had not left the place out of fear. She had not raise alarm. She remained standing at the place where Mukhiyaji was assaulted. Sarda Devi was armed with sickle had struck at “Dhauna” of Mukhiyajee. She had not seen whether there was any assault over neck or not. She could not see whether assault was assault was made over other part of body or not. In para-32 had disclosed that she had not tried to snatch sickle. She had caught hold Garasi. Talasho pushed her. In para-34 she had disclosed that all the accused persons lifted Mukhiyajee. In para-35 she had disclosed that just after interval of two or three minutes Talasho came along with Karchi who began to scratch blood by himself of, Dibbu which she prohibited. She took away Karahi from her possession and then thereafter handed it over to Darogaji. 16. Therefore, from the evidence of this PW, it is evident that she had not supported the case of the prosecution with regard to the occurrence committed outside her house as well as also failed to disclose where she had heard sound of firing coming there from. It is also evident from her evidence that she had deflected herself from the fardbeyan although from her evidence no contradiction nor any embellishment is visible. 17. PW-3 is Bhaisur of PW-2 and was residing in the different portion of the same building having partition wall dismantled. He had deposed that on the alleged date and time of occurrence while he was coming from Bathan and was in way to his house he saw Mukhiyajee along with 5-6 persons sipping tea at the house of Arjun. Then thereafter they all proceeded there from and as soon as reached near his house, Harminder came and directed Mukhiyajee to halt. Then thereafter there was scuffle in between Ganesh and Harminder and during midst thereof others got Mukhiyajee inside the house of Karu. Prakash, Pancha, Dhanraj, Mangan, Talasho and Sharda came out of home. Talasho was armed with Garasi while rest were armed with pistol. All the accused persons had gone inside the house of Karu after breaking open the door. Then thereafter there was scuffle in between Ganesh and Harminder and during midst thereof others got Mukhiyajee inside the house of Karu. Prakash, Pancha, Dhanraj, Mangan, Talasho and Sharda came out of home. Talasho was armed with Garasi while rest were armed with pistol. All the accused persons had gone inside the house of Karu after breaking open the door. He had gone inside his house and from there he saw the accused persons going inside the room, dragging Mukhiyajee to Portico of Karu and then Harminder shot at his chest. Talasho began to give Garasa blow over body of Mukhiyajee. Thereafter they all dragged Mukhiyajee to the Darwaja of Harminder. During cross-examination at para-11 he had narrated that he had seen the some part of occurrence outside house while some portion from inside house. In para-13 he had narrated that Mukhiyajee along with five or six persons were proceeding ahead while he was following. When he came near his house, Harminder came empty handed. At that very time his mother Sumitra and sister Bhikha Devi were also present. When Harminder had directed Mukhiyajee to stop Mukhiyajee also spoken but he could not hear. Then there was scuffle in between Ganesh and Harminder during midst thereof Prakash, Pancha Nand, Dhanraj, Mangan, Talasho, Sarda arrived. In para-18 he had disclosed that Ganesh had not gone inside the house of Karu, rather he fled away from that very place. In para-27 he had disclosed that none of the villagers have assembled at the time of commission of occurrence. In para-28 had said that he had simply seen Talasho inflicting nor Mukhiyajee. In para-29 had said that he had seen the accused persons dragging Mukhiyajee towards Bathan of Harminder and then thereafter he had not seen anything in para-30 had said that after half an hour police had come to the house of Harminder where he had gone and seen the dead body in possession of police. Para-20, 21, 22, 23, 24, 25 are the contradictions. 18. This witness too has given a gobye to the narration of the fardbeyan. He had not supported the testimony of PW-2 to the extent of pushing her by accused Talasho when she tried to snatch away Garasi from her hand. Para-20, 21, 22, 23, 24, 25 are the contradictions. 18. This witness too has given a gobye to the narration of the fardbeyan. He had not supported the testimony of PW-2 to the extent of pushing her by accused Talasho when she tried to snatch away Garasi from her hand. It is also evident from his evidence that he had not seen Harminder aiming at Mukhiyajee in a Gali rather he was firing to terrorize others and this part happens to be inconsistent with the evidence of PW-1 while PW-2 had totally denied. 19. PW-4 had deposed that on the alleged date and time of occurrence he along with Anirudh, Mukhiyajee proceeded from brick-kiln to village joined by others and then came to the Darwaja of Arjun Pandit where they took tea and again proceeded. When they reached near the house of Naresh; Harminder came running and directed Mukhiya to stop followed by Prakash, Mangan, Pancha Nand, Dhanraj, Talasho and Sharda. Out of whom Harminder, Mangan, Pancha Nand were armed with country made pistol Thereafter there was scuffle in between Harminder and Ganesh over which he directed Mukhiyajee to flee away but Mukhiyajee could not flee, hence he got inside the house of Karu over which Harminder, Prakash and other threatened him. All the five male accused persons broke open the door and then all of them gone inside the house dragged Mukhiyajee from a room where he was taken to Baranda and was thrown. Thereafter, Prakash loaded pistol and handed it over to Harminder who shot at chest of Mukhiyajee. Thereafter, Talasho and Sharda cut away Mukhiyajee. They directed him to leave the place otherwise he will be murdered. Then thereafter they dragged Mukhiyajee to the Darwaja of Harminder where Talasho Devi clipped away neck of Mukhiyajee by means of Garasi. During cross-examination at para-13 he had disclosed that after putting Mukhiyajee in a room they remained in Courtyard. They remained inside the main gate and whatever he had witnessed, from courtyard where he along with Anirudh, Khokha, Sambhu Tanti remained along with others. They remained there till the time Mukhiyajee was lifted. Para-15 and 16 happens to be contradiction. Therefore, from his evidence, it is evident that not only he himself rather he has shown other PWs also inside the house of Karu and from courtyard of Karu he had witnessed the courts. They remained there till the time Mukhiyajee was lifted. Para-15 and 16 happens to be contradiction. Therefore, from his evidence, it is evident that not only he himself rather he has shown other PWs also inside the house of Karu and from courtyard of Karu he had witnessed the courts. The same happens to be not only belie from the fardbeyan rather inconsistent with the evidence of PW-2, the wife of Karu. 20. PW-5 had deposed that he along with Arjun Pandit reside in a common house. The house of Naresh Mandal lies 7 to 8 hands away North through his house. On the alleged date and time of occurrence while he was along with Mukhiyajee including others, they have come near the house of Naresh Mandal where Harminder directed Mukhiyajee to stayover which there was grappling amongst Harminder and Ganesh. During said course they got Mukhiyajee inside the Courtyard of Karu. Till then Mangan Mandal, Prakash Mandal, Pancha Nand, Dhanraj, Talasho Devi and wife of Harminder came out of whom all the male accused persons were armed with pistol. They have threatened them to leave the place on account thereof he fled away therefrom and then staying apart raised alarm. After sometime he returned back to the house of Karu and had seen the accused persons carrying Mukhiyajee. He had seen injuries over person of Mukhiyajee but had not seen the occurrence. All the accused persons were carrying Mukhiyajee towards the Ganges over which they raised alarm. Then thereafter keeping Mukhiyajee at the Darwaja of Harminder they all escape therefrom. They were chased but none was apprehended. After an hour Talasho was apprehended who was handed over to police. Then had disclosed the previous animosity. He also stood one of the witness of seizure of blood stain Garasi from the house of Harminder along with Bindeshwari Bhagat, he also stood witness of seizure of Sari worn by Talasho Devi, seizure of blood stain earth from the Varanda of house of Karu, two empty cartridge was found near main door of Karu, one towel from the Varanda of house of Karu, blood stain earth from the Bathan of Harminder. During cross-examination at para-26 have disclosed that all the male accused persons have come firing. He further disclosed that he had not gone inside the house of Karu. He was simply raising alarm that Mukhiyajee is being assaulted. During cross-examination at para-26 have disclosed that all the male accused persons have come firing. He further disclosed that he had not gone inside the house of Karu. He was simply raising alarm that Mukhiyajee is being assaulted. In para-30 had said that after leaving the dead body at the Darwaja / Bathan of Harminder all the accused persons fled away towards northern direction. In para-31 had disclosed that he was present at the Bathan of Harminder when Darogaji had found dead body there. Therefore, from his evidence it is evident that he is not an eye witness to main occurrence. It is also evident that he had disclosed the presence of accused by having continuous firing and further presence of dead body at the Bathan of Harminder which was seen by the police, supported by any of the PW. 21. PW-6 had deposed that on the alleged date and time of occurrence while he was in tomato field lying one Rassi away from the house of Naresh Mandal, he heard sound of uproar over which he rushed to the house of Naresh and had seen Harminder, Prakash, Mangan, Pancha Nand, Dhanraj, Talasho Devi, Sharda Devi carrying Mukhiyajee towards Gangajee. All the male members were armed with pistol while Talasho Devi was armed with Garasi. On hue and cry so many persons assembled as a result of which the accused persons fled away leaving the dead body at the Bathan of Harminder. Then he lifted dead body from the place of Bathan of Harminder and kept it on the road in front of his own Darwaja. During cross-examination defence suggestion has been given to him that Mukhiyajee was regular visitor at his house. In para-13 he had deposed that apart from alarm he also heard sound of firing. So many persons were assembled near the house of Naresh. In para-20 he had deposed that he kept the dead body over cot. Blood had not fallen beneath the cot. Paragraph 18 and 19 happens to be the contradiction. Therefore, this PW also ruled out his status to be of eye witness. Moreover, his evidence is found to be inconsistent with the evidence of PW-5 as discussed above. 22. In para-20 he had deposed that he kept the dead body over cot. Blood had not fallen beneath the cot. Paragraph 18 and 19 happens to be the contradiction. Therefore, this PW also ruled out his status to be of eye witness. Moreover, his evidence is found to be inconsistent with the evidence of PW-5 as discussed above. 22. PW-7 had deposed that after taking tea at the place of Arjun Pandit, he, Mukhiya along with others were going and during said course as soon as he reached near the house of Naresh Mandal, Harminder came and directed the Mukhiya to stay which was opposed by Mukhiya. Then Harminder pulled Mukhiyajee over which he threw Harminder. At that very time Prakash armed with two country made pistol came. Prakash assaulted him with but of pistol as a result of which he left Harminder. Prakash handed over one pistol to Harminder. Harminder shot at him but the aim missed and on account thereof he ran therefrom out of firing. After some time he along with 10 to 15 persons came at the house of Karu where he found Prakash, Dhanraj, Pancha Nand, Harminder, Mangan, Sharda, Talasho take answer Mukhiyajee. They raised alarm. On account thereof the accused persons left the dead body at the Darwaja of Harminder and fled away. All the male accused were armed with pistol while Sharda Devi was armed with Garasa and Talasho Devi was armed with Garasi. During cross-examination at para-8 he had deposed that he had not seen dead body of Mukhiyajee at the Darwaja of Dibbu Tanti. He had not seen dead body at the shoulder of Dibbu. Para-7, para-8 and para-10 happens to be contradiction. So from his evidence, it is evident that he had given a new story inconsistent with other PWs. 23. PW-8 had deposed that he, Mukhiyajee along with ten persons after taking tea at the place of Arjun Pandit proceeded towards brick-kiln and as soon as they reached near the house of Naresh Mandal, Harminder came and directed Mukhiyajee to stay. At that very moment Prakash Mandal, Mangan, Dhanraj, Pancha Nand armed with pistol came. There was grappling in between Ganesh and Harminder and during midst thereof they got Mukhiyajee inside the house of Karu. The door was closed by the wife of Karu. Harminder, Prakash, Dhanraj, Pancha Nand, Mangan, Talasho, Sharda came and broken the door. At that very moment Prakash Mandal, Mangan, Dhanraj, Pancha Nand armed with pistol came. There was grappling in between Ganesh and Harminder and during midst thereof they got Mukhiyajee inside the house of Karu. The door was closed by the wife of Karu. Harminder, Prakash, Dhanraj, Pancha Nand, Mangan, Talasho, Sharda came and broken the door. Then thereafter they have all gone inside the house of Karu and caught hold Mukhiyajee. Ramdas brought him over Varanda where Harminder shot at him. Talasho and Sharda assaulted him with Garasi. Then thereafter all the accused persons dragged Mukhiyajee to the Darwaja of Harminder where Talasho and Sharda choked of his neck. The accused persons were trying to take away dead body of Mukhiyajee toward river but seeing the villagers they escaped leaving behind dead body. People have apprehended Talasho who was handed over to police. Then thereafter Dibbu Tanti lifted dead body of Mukhiyajee and kept it over road in front of his Darwaja. During cross-examination he had admitted in para-6 that witness Ganesh (PW-7) happens to be his brother. In para-7 of the cross-examination he had divulged that he had recorded the fardbeyan as per incident. In para-8 he had disclosed that the accused persons have taken Mukhiyajee inside the house of Karu and then got him sat in the middle room. After shutting door of the room they came out and then wife of Karu had closed the main door. In para-9 he had disclosed that Harminder had not made firing on the road. In para-10 he had disclosed that he along with Ganesh, Tanik, Anirudh have seen the occurrence from outside main door of Karu in para-13 he had narrated that Mukhiyajee had raised alarm after firing. While accused persons were dragging him during said course he also raised alarm. While the accused persons have cutting his neck at that moment he was raising alarm. The villagers were mute spectator. At para-14 had he said that the accused persons did not prevented them from carrying Mukhiyajee to the house of Karu. He has not remembered whether except Harminder other accused also fired. In para-16 had disclosed that accused Talasho had come to police before recording of his fardbeyan. His attention had also been drawn towards his previous statement (fardbeyan) as is evident from para-8 (Double), 9, 11, 17. He has not remembered whether except Harminder other accused also fired. In para-16 had disclosed that accused Talasho had come to police before recording of his fardbeyan. His attention had also been drawn towards his previous statement (fardbeyan) as is evident from para-8 (Double), 9, 11, 17. So from his evidence, it is evident that he had given gobye to his earlier version coming through fardbeyan. 24. PW-9 is another witness who claimed company of Mukhiyajee along with others and during course of going towards brick-kiln they reached near the southern corner of house of Naresh Mandal where Harminder arrived and directed Mukhiyajee to stay. Harminder caught hold Mukhiyajee. Prakash, Mangan, Dhanraj, Pancha Nand, armed with pistol arrived there. Prakash had handed over pistol to Harminder. Meanwhile, they all got Mukhiyajee inside the house of Karu. He remained at the main gate of Karu over which Harminder threatened him. Out of fear he had gone about 10 years yards away. Then thereafter he heard sound of firing coming from the house of Karu. He also saw Harminder, Mangan, Pancha Nand, Prakash, Dhanraj, Sharda, Talasho carrying Mukhiyajee towards river Ganges. On account of assemblage of large numbers of persons, accused persons took Mukhiyajee to the Bathan of Harminder. He had not gone there. He had gone to Bhatha. After returning therefrom he has gone to Darwaja of Harminder and had seen neck of Mukhiyajee choked of and dead. Dibbu took dead body of Mukhiyajee near his house. Then he had disclosed the event of land dispute. During cross-examination at para-8 he had attempted his status that all accused in a case launched by accused Harminder along with Mukhiyajee and others. In para-10 he had categorically stated that he had not seen any accused assaulting Mukhiyajee. He had not seen the event where Prakash was handing over loaded pistol to Harminder who made firing. In para-11 he had said that the accused persons have not protested while they were carrying Mukhiyajee inside house of Karu. In para-12 had stated that when accused persons threatened him, he escaped there from. He remained there even after hearing firing sound. He further disclosed that they have not forbidden Dibbu from carrying the dead body to his Darwaja. He is not remembering whether there was blood or not? From the evidence of this witness, again it transpires that some new facts got introduced by him. 25. He remained there even after hearing firing sound. He further disclosed that they have not forbidden Dibbu from carrying the dead body to his Darwaja. He is not remembering whether there was blood or not? From the evidence of this witness, again it transpires that some new facts got introduced by him. 25. PW-11 happens to be one of the witness of search and seizure and had exhibited the seizure list along with PW-5, Mohan Pandit. There also happens to be inconsistency in between the evidence of PW-5 and 6 witnesses over recovery of blood stain Garasi from the house / Varanda of Harminder. During cross-examination at para-8 had disclosed the dead body was lying in front of house of Dibbu as well as Narayan Mandal. Dead body was kept over cot. Blood was over cot however was absent beneath cot. 26. PW-12 happens to be the Investigating Authority. He had deposed that on getting telephonic information from Industrial State Police Station, he recorded the same under S.D. Entry No.81 dated 05.10.1985 and proceeded towards place of occurrence where D.S.P. and Circle Inspector were present since before and as per their direction he had recorded fardbeyan of Khokha Mandal which he exhibited. He took up investigation of the case. He had sent the FIR to the Police Station for its registration. The dead body was found over road in front of house of Narayan Mandal and Dibbu Tanti and accordingly inquest was prepared in carbon process in presence of Mohan Mandal and Md. Nizamuddin and sent the dead body for postmortem. He had inspected the place of occurrence as pointed by informant Khokha Mandal. The first one happens to be the corner of the house of Naresh Mandal. The second happens to be the house of Karu Mandal. He had found the latches of main door broken. He had also found blood on portico in a diameter of two feet. He had also found trail of blood on account of tracking. He had also found blood spot over wall of portico, door as well as door-frame of main door. He had also found trial of blood from the courtyard of Karu Mandal to the house of Naresh Mandal on the road. He had also found trail of blood on account of tracking. He had also found blood spot over wall of portico, door as well as door-frame of main door. He had also found trial of blood from the courtyard of Karu Mandal to the house of Naresh Mandal on the road. He had also found trail of blood as well as tracking mark from the corner of house of Naresh Mandal to the door of Sheobrat Mandal and further from the house of Sheobrat Mandal to the Bathan of accused. He had also found copious blood at the Bathan of accused. He had also found two empty cartridges at the door of Karu Mandal which was seized. He had also found copious blood beneath cot in front of door of Dibbu Tanti. He had seized blood stain earth from the Bathan of accused Harminder Mandal. He had also seized Garasi having blood stain thereon from southern room of Harminder Mandal as well as also seized blood stain earth from the house of Karu Mandal as well as one towel was seized from the portico of Karu Mandal. At thatvery time the villagers have brought Tarawati Devi @ Talasho. Having blood stain over his Sari and the same was seized after taking necessary precaution as required under law and seized the same. He took statement of the witnesses. He also got statement of the witnesses recorded under Section 164 of the Cr.P.C. He had sent the seized article to FSL. During cross-examination he had admitted under para-22 that he had recorded fardbeyan of informant as per direction of the Superintendent of Police as well as Inspector who also entrusted investigation to him. He had further disclosed under para-24 that police official of Industrial Estate Police Station were also present but he had not recorded their statement. In para-25 have admitted that he had seized blood from the road in front of house of Dibbut Tanti. In para-26 had disclosed that he had found blood over Varandah inside the house of the Karu. Then had disclosed that he had not mentioned the facts in the case diary that there was presence of blood on road from the house of Naresh Mandal. He had further disclosed that as per supervision note of D.S.P. he had shown his presence at the place of occurrence on 06.10.1985 instead of 05.10.1985. Then had disclosed that he had not mentioned the facts in the case diary that there was presence of blood on road from the house of Naresh Mandal. He had further disclosed that as per supervision note of D.S.P. he had shown his presence at the place of occurrence on 06.10.1985 instead of 05.10.1985. He further disclosed that he had not recorded statement of Laxman Mandal brother of deceased and one of the FIR attesting witness on the day of recording of FIR rather his statement was recorded on 27-11-1985. Then from para-35 to 42 there happens to be reference of contradiction of the different witnesses. 27. So far legality of statement under Section 164 of the Cr.P.C. is concerned, on account of non-examination of Magistrate the same cannot be accepted and in the aforesaid background it is found to be of no use and happens to be a worthless document. 28. Coming to the categories of a witness, in a case reported in AIR 1957 SC 614 (Vadivelu Thevar v. State of Madras), the Hon’ble Apex Court had identified three categories of witnesses namely wholly reliable, wholly unreliable and lastly, neither wholly reliable nor wholly unreliable. So far witnesses falling under first two categories are concerned there happens to be no difficulty either in accepting or rejecting the evidence in toto. However, the third category of witness requires some sort of exercise by way of shifting the grain from the chaff. For better appreciation the same is quoted below: “Hence, in our opinion, it is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely: (1) Wholly reliable. (2) Wholly unreliable. (3) Neither wholly reliable nor wholly unreliable. In the first category of proof, the court should have no difficulty in coming to its conclusion either way—it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses.” 29. Material contradiction virtually happens to be a theme delineable from an explanation of Section 162 of the Cr.P.C. adhering. Where there happens to be lapses, omission, addition during course of trial from the previous statement recorded under Section 161of the Cr.P.C., it happens to be a contradiction and taking into account its nature, the same is found to be bifurcated in two parts. (a) Minor Contradiction and (b) Major Contradiction. The aforesaid event is to be taken into account in the backdrop of present scenario where trial commences after so many years of the occurrence and witness, as such, deposed thereafter. Hence some sort of exaggeration/ embellishment is bound to occur in their testimony coupled with lapse of memory as well as other factors. Apart from this. This may be intentional one as well as on account of eagerness to give an input to make his evidence more reliable and trustworthy. On that score total repulsion of evidence was not at all found to be permissible, rather in that case the court has been given unfettered hand to separate the grain from chaff that means to say separate the truth from chaff. In other tone this could be treated as minor contradiction without having any opportunity to pierce core of prosecution case as has been held in (Kathi Bharat Vajsur and another Versus State of Gujarat) reported in (2012) 5 SCC 724 . What is to be seen next is where the version presented in the court was substantially similar to what was said during the investigation. It is only when exaggeration fundamentally changes the nature of the case, the court has to consider whether the witness was stating the truth or not as has been held in (Sunil Kumar versus State (Govt. of NCT of Delhi) reported in (2003) 11 SCC 367. 30. It is only when exaggeration fundamentally changes the nature of the case, the court has to consider whether the witness was stating the truth or not as has been held in (Sunil Kumar versus State (Govt. of NCT of Delhi) reported in (2003) 11 SCC 367. 30. However, presence of material contradiction has been found to adverse and to what extent it could have impact upon the prosecution version, that had already been taken into consideration in a case reported in (2010) 13 SCC 657 (Sunil Kumar Sambhudayal Gupta Versus State of Maharashtra). Material contradictions 30. While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide State v. Saravanan.) 31. Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and the other witness also makes material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (Vide State of Rajasthan v. Rajendra Singh.) 32. The discrepancies in the evidence of eyewitnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that the prosecution proved its case beyond reasonable doubt. (Vide Mahendra Pratap Singh v. State of U.P.) 33. In case, the complainant in the FIR or the witness in his statement under Section 161 CrPC, has not disclosed certain facts but meets the prosecution case first time before the court, such version lacks credence and is liable to be discarded. (Vide State v. Sait.) 34. In State of Rajasthan v. Kalki, while dealing with this issue, this Court observed as under: (SCC p. 754, para 8) “8. (Vide State v. Sait.) 34. In State of Rajasthan v. Kalki, while dealing with this issue, this Court observed as under: (SCC p. 754, para 8) “8. … In the depositions of witnesses there are always normal discrepancies however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.” 35. The courts have to label the category to which a discrepancy belongs. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. (See Syed Ibrahim v. State of A.P. and Arumugam v. State.) 36. In Bihari Nath Goswami v. Shiv Kumar Singh this Court examined the issue and held: (SCC p. 192, para 9) “9. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.” 37. While deciding such a case, the court has to apply the aforesaid tests. Mere marginal variations in the statements cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution case, render the testimony of the witness liable to be discredited”. 31. Now having the viability of evidence of the witness judged on that very score. As detailed in foregoing paragraph, the evidence of PW-2, on account of her natural conduct as well as supported with the objective finding of Investigating Officer stood the test of sterling witness. Though there happens to be some sort of variance amongst the PWs so far occurrence outside house of PW-2 is concerned as well as with regard to occurrence alleged to have committed at the Bathan of Harminder, but the fact remains fully proved and corroborated with the evidence of PWs regarding the occurrence committed inside house of PW-2 is concerned where the deceased had already sustained fatal injury as opined by the doctor. At the present moment it would not be out to place that informant PW-8 really had given twist in his earlier version on same score. His attention has been drawn towards the same, and on account thereof, his evidence became silly as well as superficial. 32. In Sucha Singh v. State of Punjab (2003) 7 SCC 643 , it has been held: “29. In Sucha Singh v. State of Punjab (SCC pp. 113-14, para 51) this Court had taken note of its various earlier judgments and held that even if major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, it is the duty of the court to separate grain from chaff. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno, falsus in omnibus has no application in India and the witness cannot be branded as a liar. In case this maxim is applied in all the cases it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has too be appraised in each case as to what extent the evidence is worthy of credence, and merely because in some respects the court considers the same to be insufficient or unworthy of reliance, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well”. 33. At this juncture it looks pertinent to find out authenticity of an objection raised on behalf of appellants that there happens to be consistent version of the prosecution that deceased was shot at from point blank range at the inner Varandah of PW-2 but there happens to be absence of greasing, tattooing, charring around the injury. Suffice it to say that these objection is non-sustainable in the background of the fact that none of the witnesses have been cross-examined at the factual aspect whether at the time of occurrence deceased had worn cloth or not. The inquest is not going to support the defence version because of the fact that it has been prepared after having the deceased dragged to the Bathan of Harminder and then was taken a back on a road in front of house of Debbu. The inquest is not going to support the defence version because of the fact that it has been prepared after having the deceased dragged to the Bathan of Harminder and then was taken a back on a road in front of house of Debbu. 34. From the evidence on the record as referred above, some sort of embellishment, contradictions, variance has been found but having the evidence in its entirety as well as taking into account previous statement, evidence of majority of witnesses have been found intact on that very score. However, it could be said that there happens to be some sort of variance in between the First Information Report as well as evidence of PW-8. 35. Importance of FIR and its repercussions has been tested times without number by the Hon’ble Apex Court wherein it has been held that main purpose of the FIR is to satisfy the police officer as to the commission of a cognizable offence for him to conduct further investigation in accordance with law. The primary object is to sail the criminal law into motion and it may not be possible to give every minute detail with unmistakable presence in the FIR. The FIR itself is not the proof of a case, but is a piece of evidence which could be used for corroborating the case of the prosecution. The FIR need not be an encyclopedia of all the facts and circumstances on which the prosecution realize. It only has to state the basic case. the attending circumstances of each case would further have considerable bearing of application of such principles to a give situation as has been held in State of U.P. Versus Krishna Master (2010) 12 SCC 324 , Ranjit Singh Versus State of M.P. (2011) 4 SCC 336 . The Hon’ble Court had also taken into consideration the effect of omission of name of accused in the FIR who subsequently been named by the witnesses during their statement and the same has been explained under para-17 of the judgment reported in (2012) 6 SCC 204 Jitender Kumar Versus State of Haryana. “17. The court shall also examine the role that has been attributed to an accused by the prosecution. “17. The court shall also examine the role that has been attributed to an accused by the prosecution. The informant might not have named a particular accused in the FIR, but such name might have been revealed at the earliest opportunity by some other witnesses and if the role of such an accused is established, then the balance may not tilt in favour of the accused owing to such omission in the FIR”. 36. At this score it is found desirable to refer paragraph 10 of a case Sunil Kumar Versus State Government of NCT of Delhi reported in (2003) 11 SCC 367. “10. Evidence of PW 5 has been analyzed with great care and caution by the trial court as well as the High Court. The so-called improvements do not, in any way, introduce a new facet of the case. Every omission is not a contradiction. Minor details which are not indicated in the first information report are later on elaborated in court, do not justify a criticism that the case originally presented has been abandoned to be substituted by another one. PW 5's evidence appears to be clear, cogent and trustworthy. Nothing substantial has been brought on record to disregard the testimony of this witness. Though PW 3 changed his version, yet his evidence does not get totally wiped out. A part of it which is reliable can be taken note of by the court and has, in fact, been taken note of. The evidence of this witness notwithstanding his making a different version provides some corroboration, though as noted above, the evidence of PW 5 alone was sufficient to fix the guilt on the accused persons. Merely because of the fact that there were some minor omissions, which are but natural, considering the fact that the examination in court took place years after the occurrence, the evidence does not become suspect. Necessarily, there cannot be exact and precise reproduction in any mathematical manner. What needs to be seen is whether the version presented in the court was substantially similar to what was stated during investigation. It is only when exaggerations fundamentally change the nature of the case, the court has to consider whether the witness was telling the truth or not. As has been held by the trial court as well as the High Court, the evidence of PW 5 was truthful evidence. It is only when exaggerations fundamentally change the nature of the case, the court has to consider whether the witness was telling the truth or not. As has been held by the trial court as well as the High Court, the evidence of PW 5 was truthful evidence. He has graphically described the assaults on the deceased. Accused Dharamvir gave several blows on the person of the deceased while accused Sunil caught hold of him to facilitate the assaults. Section 34 of the Act is clearly attracted. This is not a case where anything substantial has been brought on record to disregard the evidence of PW 5”. 37. One more aspect that could be found to be clinching evidence against the accused is evident from the testimony of witnesses along with the evidence of Investigating Officer. Coupled with statement of accused recorded under Section 313 Cr.P.C. Right from initial stage, there happens to be evidence of prosecution that accused Talasho @ Tarawati Devi was apprehended on chase having blood stain at her Sari. Investigating Officer after apprehending the Talasho @ Tarawati Devi, got the Sari which was sent to Forensic Science Laboratory and its report is Exhibit – 10, 10/1 coupled with material exhibit-III. The report is clear to the extent that blood happens to be of human. 38. While aforesaid incriminating material was placed before the said Talasho @ Tarawati Devi, she failed to disown the same. Not only this she also failed to reject the event much less in light of evidence of Investigating Officer. PW-12, Para-15, 16 (Exhibit 8/5) and admission by way of suggestion under para-30 of his cross-examination. However, she had admitted her apprehension by the police. 39. In likewise manner the explanation of appellant Harminder is also to be taken down. Material exhibit-II happens to be towel seized from the house of PW-2, which the prosecution witness claimed belonging to appellant Harminder when he was confronted with the same he answered that it is true that towel soaked with blood was seized from Varendah of Karu Mandal, and by such admission had given additional support to the testimony of PW-2 over commission of occurrence at her Varendah whereunder deceased was shot at. 40. 40. So far importance of statement is concerned, it has been mandated by the series of judicial pronouncement that it happens to be an opportunity provided under law to facilitate the accused to explain the incriminating material having been placed during trial against him. It happens to be obligatory which has to be properly followed. Side by side, it has also been mandated under sub-clause (4) that any answer given by accused could be taken / used against him. 41. For the reasons aforesaid mentioned, we do not find any merit in this appeal and is accordingly dismissed. Appellants are on bail hence are directed to surrender before the learned lower court to serve out the sentences. I agree.