Judgment 1. This criminal appeal has been preferred against the judgment of conviction and order of sentence dated 28.02.2001 passed by learned 7th Additional Sessions Judge, Munger in Sessions Trial No. 141 of 1994/41 by which and whereunder he convicted all the above stated appellants having found guilty for the offences punishable under Sections 304 (II) read with Sections 149, 326 read with Sections 149, 148 and 448 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for seven years for the offence punishable under Section 304 (II) read with Section 149 and 326 read with Section 149 of the Indian Penal Code each. No separate sentence was awarded for the offences punishable under Sections 148 and 448 of the Indian Penal Code. However, all the sentences were ordered to run concurrently. 2. In brief, the prosecution case, is that P.W. 2, Rewati Devi gave her Ferdbeyan to officer in charge of Mehus police station on 20.04.1993 at about 09:45 A.M. at her door to this effect that she was sleeping in her house along with her daughter Jairani Devi (P.W. 4) whereas Ilachi Devi (P.W. 1) along with her daughter was sleeping in her house and her father, namely, Horil Dharhi (P.W. 3) along with one Dukhi Dharhi were sleeping in courtyard of the house of Ilachi Devi. The aforesaid Dukhi Dharhi had gone to the house of Ilachi Devi and had stayed at her house in the night. She further stated that between 19/20-04-1993 at about 1:00 A.M, she heard the sound of bomb explosion and also heard the noise coming out from the house of one Basudeo Pandit. The villagers ran towards the house of Basudeo raising alarm. The female folk of Dharhi community also woke up and assembled at one place. In the meantime, Mahendra Beldar, Amrika Chouhan, Nunulal Chauhan, Kedar Chauhan, Bisho Chauhan, Kishori Chauhan, Ram Babu Chauhan and Shiv Balak Chauhan being armed with deadly weapons encircled her house and started giving threatening to assault on the pretext that one stranger had stayed in her home. The aforesaid persons entered into the courtyard of Horil Dharhi and caught Horil Dharhi and Dukhi Dharhi and started assaulting them. Both the aforesaid persons were taken towards village by the aforesaid persons. The aforesaid Dukhi Dharhi died of assault whereas both the hands of Horil Dharhi were broken. The aforesaid persons entered into the courtyard of Horil Dharhi and caught Horil Dharhi and Dukhi Dharhi and started assaulting them. Both the aforesaid persons were taken towards village by the aforesaid persons. The aforesaid Dukhi Dharhi died of assault whereas both the hands of Horil Dharhi were broken. The daughter of Horil Dharhi took him to her house in the same night. 3. On the basis of aforesaid ferdbeyan, Sheikhpura P.S. Case No. 77 of 1993 under Sections 302 and other minor sections of the Indian Penal Code was registered and on the same day, formal first information report for the above stated offences was drawn up against the appellants. 4. The Ferdbeyan of Horil Dharhi (P.W. 3) was recorded by A.S.I., Sidhan Sharma of Sheikhpura police station on 20.04.1993 at about 08:00 PM. at Sub-divisional Hospital, Sheikhpura. 5. The Investigating Officer took charge of investigation and after completion of investigation, Investigating Officer submitted charge sheet against the appellants except FIR named accused Lakhan Chauhan, for the offences punishable under Section 302 and other minor sections of the Indian Penal Code. The cognizance of the offence was taken and the case was committed to the court of sessions, in usual way. 6. All the appellants stood trial and accordingly, they were charged for the offences punishable under Sections 147, 148, 448, 307/149, 302/149 of the Indian Penal Code The appellants denied the charges and claimed to be tried. 7. In course of trial, prosecution examined, altogether, eight witnesses and besides it, prosecution also got exhibited several documents as documentary evidence. The statements of appellants were recorded under Section 313 of the Cr. P.C. in which they reiterated their innocence and denied the prosecution story. Although, no oral evidence was adduced on behalf of the appellants but appellants got exhibited certified copy of first information report of Sheikhpura P.S. Case No. 76 of 1993 as well as certified copy of order sheets passed in Sheikhpura P.S. Case No. 76 of 1993. From perusal of statements of appellants recorded under Section 313 of the Cr. Although, no oral evidence was adduced on behalf of the appellants but appellants got exhibited certified copy of first information report of Sheikhpura P.S. Case No. 76 of 1993 as well as certified copy of order sheets passed in Sheikhpura P.S. Case No. 76 of 1993. From perusal of statements of appellants recorded under Section 313 of the Cr. P.C., trends of cross examination of prosecution witnesses as well as documentary evidence produced on behalf of the appellants, it is clear that the defence of the appellants was total denial of prosecution story and they took stand that on the alleged date of occurrence P.W.3 Horil Dharhi and deceased Dukhi Dharhi along with some others committed dacoity in the house of Basudeo Pandit and in course of aforesaid dacoity, both the aforesaid persons were caught and assaulted by the villagers as a result of which Dukhi Dharhi died whereas P.W. 3 (Horil Dharhi) sustained injuries. 8. The learned trial court, having analyzed the materials available on the record, passed the impugned judgment of conviction and order of sentence convicting and sentencing the appellants in the manner as stated above. 9. During pendency of this appeal, appellant no. 9, namely, Bhola Chouhan died and, accordingly, this appeal abated in respect of the appellant no. 9, Bhola Chouhan. 10. Learned counsel appearing for the appellants challenged the impugned judgment of conviction and order of sentence arguing that the learned trial court failed to appreciate the evidences available on the record in proper way and completely ignored this fact that almost all the prosecution witnesses are interested witnesses and they made contradictory statements in respect of manner and genesis of the occurrence. He further submitted that the learned trial court also failed to appreciate this fact that there was no source of identification but in course of trial, prosecution witnesses developed the story and stated that a Lantane was burning at the time of alleged occurrence and they could identify the appellants in the light of Lantane. He further submitted that no objective features were found on the place of occurrence by the Investigating Officer and non finding of sign of dragging on the place of occurrence creates doubt about the prosecution story. He further submitted that no objective features were found on the place of occurrence by the Investigating Officer and non finding of sign of dragging on the place of occurrence creates doubt about the prosecution story. He also submitted that learned trial court failed to appreciate this fact that on the alleged date of occurrence, a dacoity was committed in the house of one Kapildeo Pandit, who before institution of the present case, lodged Sheikhpura P.S. Case No. 76 of 1993 against unknown persons but specifically mentioned in his written report that two unknown persons of Dharhi community were assaulted by the villagers and the aforesaid fact is established from Exhibit-A. He also submitted that although police submitted final form in Sheikhpura P.S. Case No. 76 of 1993 but learned Additional Chief Judicial Magistrate, Sheikhpura took cognizance of the offences in Sheikhpura P.S. Case No. 76 of 1993 which is established from perusal of Exhibit-B. He further submitted that aforesaid fact clearly suggests that on the alleged date of occurrence deceased Dukhi Dharhi and injured Horil Dharhi were caught by the villagers while they were engaged in committing dacoity and the villagers assaulted them but prosecution suppressed the aforesaid fact and did not come before this Court with clean hands and, therefore, appellants are entitled to get the benefit of doubt. 11. Leaned counsel appearing for the appellants relied upon a decision reported in AIR. 1983 SC 349 State of Uttar Pradesh vs. Jageshwar and others in which it has been held by the Apex Court that identification of a large group of 14/15 persons at dead of night in the light of tiny kerosene Lantern, was inherently difficult. He also relied upon a decision reported in AIR 1981 SC 942 Ram Ashrit and others vs. State of Bihar in which it has been held that when all the material witnesses in a murder case were either related or otherwise interested in the prosecution, their testimony had to pass the test of close and severe scrutiny before their testimony could be safely acted upon. 12. 12. Learned counsel for the appellants also relied upon a decision reported in 2006 (1) PLJR 709 Bindeshwar Prasad and others vs. The State of Bihar in which it has been held by a Single Bench of this Court that it is true that evidence of a witness can not be discarded only on the ground that he is interested witness but at the same time, in such a situation, it is well settled that his evidence should be scrutinized cautiously and if evidence of eye witness (related) not supported by medical evidence- conviction and sentence is unsafe. 13. On the other hand, learned Additional Public Prosecutor, supported the impugned judgment of conviction and order of sentence arguing that not only injured Horil Dharhi (P.W. 3) but also eye witnesses supported the prosecution case and furthermore, doctor also found grievous injury on the person of P.W. 3 and furthermore, the post mortem report of deceased Dukhi Dharhi also supports the prosecution case and, therefore, learned trial court rightly convicted and sentenced the appellants and there is no need to interfere with the findings of learned trial court. 14. As I have already stated that, altogether, eight prosecution witnesses were examined on behalf of the prosecution in course of trial and out of them, P.W. 1, Ilaichi Devi, P.W. 2, Rewati Devi, P.W. 4, Jairani Devi and P.W. 7 Sukumari Devi are said to be eye witnesses of the alleged occurrence. P.W. 3, Horil Dharhi is injured of this case. P.W. 5 Dr. Jaideep Singh held post mortem examination on the corpus of Dukhi Dharhi. P.W. 6 Prakashanand Tiwari is Investigating Officer whereas P.W. 8 Dr. Mrigendra Prasad Singh examined P.W. 3 Horil Dharhi after the alleged occurrence. 15. P.W. 1, P.W. 2, P.W. 3, P.W. 4 and P.W. 7 supported the occurrence and stated that the appellants being armed with deadly weapons entered into the house of Baldeo Dharhi and assaulted the Horil Dharhi a well as deceased, Dukhi Dharhi and both the aforesaid persons were taken towards the village where they were again assaulted and in course of aforesaid assault, Dukhi Dharhi died whereas P.W. 3 Horil Dharhi sustained injury by the aforesaid assault. 16. 16. Exhibit-A, the certified copy of first information report of Sheikhpura P.S. Case No. 76 of 1993 reveals that two persons of Dharhi community were assaulted by the villagers of Laxmipur village on the alleged date of occurrence and the appellants gave suggestion to prosecution witnesses that deceased Dukhi Dharhi and Horil Dharhi had gone to commit theft in the house of Kapildeo Pandit but they were caught by the villagers and they were assaulted by the villagers on the alleged date of occurrence as a result of which Dukhi Dharhi died whereas Horil Dharhi sustained injury. Therefore, it is admitted case of the parties that on the fateful night, deceased, Dukhi Dadhi died and P.W. 3 Horil Dharhi sustained injury due to assault. 17. P.W. 5, Dr. Jaideep Singh stated that he did post mortem examination on the corpus of deceased, Dukhi Dharhi on 21.04.1993 at 11:30 AM. but no external injury could be seen as body was in state of decomposition and skin pilled off from most place of the body. On dissection, this witness found extravessation of blood in soft tissues of left temporal region and axephiliar chest ball. He also found fracture of ribs on right chest from 2nd to 5th and on left from 2nd to 4th with laceration of both lungs and blood and clots filled in both plural cavity. This witness opined that death was caused by shock and haemorrhage due to above stated injuries. This witness also opined that above stated injuries were caused by hard and blunt substance and time elapsed since death was 24 to 36 hours. 18. Exhibit-1, post mortem report of deceased Dukhi Dharhi as well as testimony of P.W. 5 also confirmed the death of deceased Dukhi Dharhi. 19. Learned counsel appearing for the appellants, at this juncture, argued that according to Exhibit-1 as well as testimony of P.W. 5, the dead body was in state of decomposition and no external injury was found on the person of deceased and, therefore, the aforesaid fact completely negates the statements of so-called eye witnesses but I am not in agreement with the aforesaid submissions because admittedly, the occurrence took place between the night of 19.04.1993 to 20.04.1993 and the post mortem examination on the corpus of deceased, Dukhi Dharhi was done on 21.04.1993 at about 11:30 AM. and, therefore, the post mortem report of deceased confirms this fact that death of deceased Dukhi Dharhi had taken place 24 to 36 hours before his post mortem examination. So far as non-finding of external injury on the person of deceased, Dukhi Dharhi is concerned, admittedly, the dead body of deceased was in state of decomposition. Moreover, the death of deceased Dukhi Dharhi was caused by assault is not in dispute and the dead body of deceased was found by P.W. 6 who stated that he prepared the inquest report of dead body of deceased, Dukhi in presence of witnesses, Badri Singh and Bodhu Chauhan which has been marked as Exhibit-6 and furthermore, P.W. 6 stated that he sent the dead body of deceased, Dukhi Dharhi for post mortem examination through Sarweshwar Goshwami and Chaukidar, Mohan Dharhi. Therefore, it cannot be said that the recovered dead body was not of deceased, Dukhi Dharhi. 20. Now, question arises for determination who assaulted the deceased Dukhi Dharhi and injured Horil Dharhi on the alleged date of occurrence. In this connection, P.W. 1 Ilaichi Devi claimed, herself, to be eye witness and stated that on the alleged date of occurrence she along with her daughter Shiv Kumari was sleeping in her house whereas Dukhi Dharhi and Horil Dharhi were sleeping in her courtyard. This witness further stated that on the sound of explosion of bomb, she along with her daughter woke up and saw that Bhola Mahendra, Rambabu, Nunulal, Ramchandra, Shivbalak, Biso, Kedar, Lakhan, Kishori and America entered her house and started assaulting her father, Horil Dharhi as well as deceased Dukhi Dharhi. She stated that the aforesaid persons took Horil Dharhi and Dukhi Dharhi towards Khalihan. She further stated that she along with P.W. 2, Rewati who happens to be her gotini, followed the aforesaid persons but Bhola and Rambabu abused her and Nunulal and Kedar assaulted her. She further stated that she stood silently and the aforesaid persons having assaulted Horil Dharhi let him off whereas they took Dukhi Dharhi. She, specifically, stated that Ram Babu broke both the hands of Horil Dharhi and pierced bhala to him. The aforesaid persons also committed loot in her house. She admitted that there was no previous enmity between the appellants and injured as well as deceased. She claimed to have identified the appellants in the light of Lantane. 21. She, specifically, stated that Ram Babu broke both the hands of Horil Dharhi and pierced bhala to him. The aforesaid persons also committed loot in her house. She admitted that there was no previous enmity between the appellants and injured as well as deceased. She claimed to have identified the appellants in the light of Lantane. 21. P.W. 2, Rewati Devi stated that she along with her daughter was sleeping in her house and her father Horil Dharhi along with Dukhi Dharhi was sleeping in courtyard. She further stated that she heard the sound of explosion of bomb in the night. She further stated that Rambabu, Lakhan, Kedar, Shivbalak, Mahendra and Nunulal entered her house and she again stated that Bishun, America and Kishori were also present along with the aforesaid persons. She repeated almost the similar statement which has been made by P.W. 1. 22. P.W. 4 Jairani Devi is daughter of P.W. 2. She also supported the statements of P.W. 1 and P.W. 2 though she has named appellant Rambabu, Lakhan Chauhan, Shivbalak, Kedar, Nunulal Chauhan in her statement. 23. P.W. 7, Sukumari Devi is daughter of P.W. 1 and she also supported the prosecution case and claimed herself to be eye witness of the alleged occurrence. 24. All the aforesaid prosecution witnesses were cross examined by the appellants but it appears to me that appellants could not succeed to elicit anything in their favour from the statements of the aforesaid prosecution witnesses and furthermore, I find that all the aforesaid four prosecution witnesses admitted that an occurrence had taken place in the house of Kapildeo Pandit in the night of alleged occurrence and after that appellants entered the house and committed the alleged occurrence. 25. P.W. 8 Dr. Mrigendra Prasad Singh found injuries on the person of P.W. 3 and this witness proved the injury report of P.W.3. This witness found obvious fracture on both the hands of P.W.3. Therefore, this witness also confirms this fact that just after the alleged occurrence fracture injury was found on both the hands of P.W. 3. 26. P.W. 6 stated at para 10 of his cross examination that he found dead body of deceased, Dukhi Dharhi in front of house of one Ashok Mishra. He also found some blood on the earth which was seized by him. 26. P.W. 6 stated at para 10 of his cross examination that he found dead body of deceased, Dukhi Dharhi in front of house of one Ashok Mishra. He also found some blood on the earth which was seized by him. He admitted that in course of investigation, he got information regarding the criminal antecedent of injured Horil Dharhi as well as his family members. He also admitted this fact that he had gone in Laxmipur village in connection with investigation of a dacoity case which had been lodged by one Kapildeo Pandit. 27. No doubt, the prosecution witnesses made minor contradictions and improved their statements in course of trial but the aforesaid minor contradictions as well as improvements do not go to the root of the prosecution case because it is an admitted case of the appellants that deceased and P.W. 3 Horil Dharhi sustained injury at the hands of villagers on the alleged date of occurrence and injured Horil Dharhi as well as eye witnesses, specifically, stated that it were appellants who assaulted Horil Dharhi as well as deceased Dukhi Dharhi. Therefore, I am of the opinion that the learned trial court rightly convicted the appellants and there is no scope for this appellate court to interfere with the findings of learned trial court. 28. No doubt, except family members of injured Horil Dharhi, not a single independent prosecution witness came forward to support the prosecution case but according to prosecution case, the appellants entered the house of P.W. 1 and from there the appellants took injured Horil Dharhi as well as deceased Duki Dharhi towards khalihan where after assault, Horil Dharhi was let off whereas deceased Dukhi Dharhi was killed. It is an admitted position that on the alleged date of occurrence, an incident had taken place in the house of Kapildeo Pandit and after that the occurrence of the present case took place. Therefore, it appears that the injured Horil Dharhi as well as deceased Dukhi Dharhi were caught and assaulted by the appellants mere on suspicion and both the aforesaid persons were taken away by the appellants from the house of P.W. 1. Therefore, even if no independent witness came forward to support the prosecution case, then also, the depositions of eye witnesses of this case cannot be discarded. 29. Therefore, even if no independent witness came forward to support the prosecution case, then also, the depositions of eye witnesses of this case cannot be discarded. 29. So far as question of identification is concerned, according to prosecution case, the first part of occurrence took place in the house of P.W. 1 and after that deceased and injured Horil Dharhi were taken away by the appellants towards the village and P.W. 1 as well as P.W. 2 followed the appellants and after that the appellants assaulted the Horil Dharhi as well as Dukhi Dharhi in presence of P.W. 1 and P.W. 2. Admittedly, all the appellants are co-villagers of P.W. 1 and P.W. 2 and they were well known to P.W. 1 and P.W. 2 prior to the alleged occurrence and, therefore, the identification of the appellants by the P.W. 1, P.W. 2, P.W. 3, P.W. 4 and P.W. 7 can not be doubted and the decision cited on behalf of the appellants on this point is not applicable in this case. 30. So far as question of sentence is concerned, it is admitted case of both the parties that on the alleged date of occurrence, an incident took place in the house of one Kapildeo Pandit and in course of aforesaid incident bomb was exploded and after that the occurrence of the present case took place. Therefore, it is established that appellants assaulted P.W. 3, Horil Dharhi and Dukhi Dharhi in suspicion treating them as authors of aforesaid incident which had taken place in the house of Kapildeo Pandit. Therefore, the aforesaid circumstance shows that the intention of appellants was only to punish the deceased, Dukhi Dharhi and injured Horil Dharhi taking law in their hands. Furthermore, I find that alleged occurrence took place in the year 1993 and the appellants faced trial till the year 2001. Furthermore, I find that in course of trial no specific overt-act was attributed against any appellants. Although, P.W. 1 stated that appellant Rambabu broke both the hands of Horil Dharhi but she had not made the aforesaid statement before the police as admitted by P.W. 7 at para 17 of his cross-examination. Moreover, P.W. 3 has also not stated this fact as to who broke his both hands. Although, P.W. 1 stated that appellant Rambabu broke both the hands of Horil Dharhi but she had not made the aforesaid statement before the police as admitted by P.W. 7 at para 17 of his cross-examination. Moreover, P.W. 3 has also not stated this fact as to who broke his both hands. Therefore, it is established from the evidences available on the record that all the appellants assaulted P.W. 3, Horil Dharhi as well as Dukhi Dharhi but no specific overt-act could be proved by the prosecution against the appellants. Furthermore, I find that prosecution has not brought any previous conviction or previous antecedent of the appellants. I also find that in course of trial as well as during pendency of this appeal, the appellants remained in jail custody for certain periods and, therefore, in my view, if the sentences of the appellants are reduced to the period already undergone by them in course of trial as well as during the pendency of this appeal, the same will meet the ends of justice and accordingly, the sentences of the appellants are reduced to the period already undergone by them in course of trial as well as during the pendency of this appeal. 31. On the basis of aforesaid discussions, this criminal appeal stands dismissed with modification in sentence order in the manner as stated above. Appeal dismissed.