AMARESH KUMAR LAL, J.:–Both the appeals arise out of the judgment and order dated 8th April, 1991 passed by the learned 2nd Additional Sessions Judge, Muzaffarpur, in Sesstions Trial no. 148 of 1987 by which all the appellants have been convicted and sentenced to undergo rigorous imprisonment for life under Section 302/34 of the Indian Penal Code and rigorous imprisonment for three months under Section 342 of the Indian Penal Code. The appellant Bharat Singh has been further convicted and sentenced to undergo rigorous imprisonment for one year under Section 379 of the Indian Penal Code. The sentences have been directed to run concurrently. 2. The prosecution case, in brief, is that on 19.10.1986 at about 8 A.M. Baleshwar Tiwari (P.W.2) came to the house of the deceased Bhag Narayan Tiwari, husband of the informant Dharmawati Devi (P.W.3) and stated that the price of a she-buffalo had been materialized and requested him to purchase the she-buffalo. Thereafter, the deceased took Rs. 4,000/- and went with Baleshwar Tiwari (P.W.2) to purchase the she-buffalo from village-Dahila. At about 11 A.M., Baleshwar Tiwari (P.W.2) rushed to the house of the informant in an injured condition and told her that Bharat Singh, Dhirendra Singh, brother of dacoit Jitendra Singh and his companion dacoits Sagar Singh, Dip Narayan Singh, Gajendra Singh and Shiwan Tiwari caught hold of the deceased Bhag Narayan Tiwari. Dip Narayan Tiwari (appellant) tied both hands of the deceased and all the accused dragged him in the western side of the cattle-shed of Jitendra Singh and Bharat Singh and told that he would also be killed. Near the electric pole Bharat Singh cut the neck of the deceased with chhura and Gajendra Singh pierced knife (chhura) in the abdomen of the deceased. Dip Narayan Tiwari caught hold of the deceased and Shiwan Tiwari, Sagar Tiwari and Dhirendra Tiwari pulled the tongue of the deceased out and tied it with a gamachha. All the accused caused the death of the deceased and threw the dead body in the Madhepura Chawar (barren land). The occurrence was witnessed by Baleshwar Tiwari (P.W.2) and the persons who were working in the field and the co-villagers including Ram Prasidh Tiwari (P.W.6), Hari Narayan Tiwari (P.W.4), Chandrika Tiwari, Raj Kishore Tiwari (P.W.1) and others. On raising alarm the accused fled away as a result of which the life of Baleshwar Tiwari (P.W.2) could be saved. The occurrence was witnessed by Baleshwar Tiwari (P.W.2) and the persons who were working in the field and the co-villagers including Ram Prasidh Tiwari (P.W.6), Hari Narayan Tiwari (P.W.4), Chandrika Tiwari, Raj Kishore Tiwari (P.W.1) and others. On raising alarm the accused fled away as a result of which the life of Baleshwar Tiwari (P.W.2) could be saved. He rushed to the village with tottering steps and narrated about the occurrence to the informant. The further case of the prosecution is that Bharat Singh (appellant) took Rs. 4,000/- from the deceased and Gajendra Singh took Rs. 1,200/- from Baleshwar Tiwari. At the time of occurrence, Ram Kumar Tiwari (appellant) also came there and he also participated in causing the death of the deceased. 3. The fardbeyan of the informant was recorded by Sub-Inspector, Baij Nath Singh (P.W.9) on 9.10.1986 at 15 hours in the house of the informant. Hathauri P. S. Case no. 73 of 1986 was instituted against Bharat Singh and six others. After investigation chargesheet was submitted against all the seven accused. Gajendra Singh died during the pendency of the trial and co-accused Ram Sagar Singh absconded. As such, his trial was separated vide order dated 11.5.1998. Charges under Sections 302/34 and 342 of the Indian Penal Code were framed against all the appellants. Bharat Singh was further charged under Section 379 of the Indian Penal Code. 4. The defence of the appellants is that they have been falsely implicated in this case due to previous enmity and grudge. 5. After trial all the appellants have been convicted and sentenced as aforesaid. 5A. Since no one appeared on behalf of the appellants, Sri Ajay Kumar Thakur, Advocate of the Patna High Court, was appointed amicus curiae. 6. It has been submitted on behalf of the appellants that the prosecution has changed the place of occurrence during trial. There is delay in the dispatch of the F.I.R. F.I.R. was dispatched on 20.10.1986 whereas it has been received by the court on 22.10.1986 and the prosecution has not explained the delay. He has also submitted that at the time of examination of the appellants under Section 313 of the Code of Criminal Procedure, all the circumstances against the appellants were not put to them for eliciting their explanation and using those circumstances to hold them guilty vitiates the trial. He has also submitted that at the time of examination of the appellants under Section 313 of the Code of Criminal Procedure, all the circumstances against the appellants were not put to them for eliciting their explanation and using those circumstances to hold them guilty vitiates the trial. As such, the conviction of the appellants should not have been made. 7. Learned counsel for the State has submitted that in rural areas the delay in receipt of the F.I.R. is a normal feature. There is no deliberate delay in the dispatch/receipt of the F.I.R. The ocular evidence stands corroborated by the medical evidence. The informant (P.W.3) is not the eye witness to the occurrence. She had narrated about the occurrence to the police officer whatever she was told by P.W.2, Baleshwar Tiwari, regarding the occurrence. As such, there may be some variance but the variance is not vital and does not affect the merit of the prosecution case. 8. In view of the divergent contentions of both the parties, this Court is required to reappraise the prosecution evidence to consider as to whether the prosecution has been able to substantiate its case beyond reasonable doubt. 9. The prosecution has examined nine witnesses including the investigating officer and the doctor. They are Ram Kishore Tiwari (P.W.1), Baleshwar Tiwari (P.W.2), Dharmawati Devi (P.W.3), Hari Narain Tiwari (P.W.4), Dr. Manoranjan Kr. Srivastava (P.W.5), Ram Prasidh Tiwary (P.W.6), Sarju Prasad (P.W.7), Dr. Hari Kishore Pd. Thakur (P.W.8) and Baij Nath Singh (P.W.9). 10. P.W.1 Ram Kishore Tiwari is the F.I.R. witness. He has stated that he was going to harvest the paddy crops and saw eight persons, out of them Dhirendra Singh (appellant), Rajendra Singh, Ram Kumar Singh (appellant), Bharat Singh (appellant), Sagar Singh, Dip Narain Tiwari (appellant) and Shiwan Tiwari (appellant) were dragging Bhag Narain Tiwari (deceased) and Baleshwar Tiwari (P.W.2) was also caught hold of by the accused. All the accused dragged Bhag Narain Tiwari and Baleshwar Tiwari (P.W.2) was tied with the electric pole. Shiwan Tiwari was pulling the tongue of Bhag Narain Tiwari and other accused caught hold of the deceased. Thereafter, Bharat Singh (appellant) cut the neck of Bhag Narain Tiwari with chhura and Gajendra Tiwari (died) tore the abdomen of the deceased. The occurrence took place on the southern side of the bank of the bandh. The dead body was thrown into the water. Thereafter, Bharat Singh (appellant) cut the neck of Bhag Narain Tiwari with chhura and Gajendra Tiwari (died) tore the abdomen of the deceased. The occurrence took place on the southern side of the bank of the bandh. The dead body was thrown into the water. Baleshwar Tiwari (P.W.2) loosened his hands and ran towards the village. In his cross-examination he has stated that while the deceased was dragging he was crying. He has also stated that while the deceased was lying on the ground his neck was cut. He has denied that he has not seen the occurrence. 11. P.W.2 Baleshwar Tiwari is the person who had narrated about the occurrence to the informant, wife of the deceased, and was also a victim of the occurrence. He has stated that Bhag Narain Tiwari (deceased) was to purchase a she-buffalo. The deceased took Rs. 4,000/- and he (P.W.2) took Rs. 1.200/- to purchase an ox from the village Dahila. While they reached near the Bandh, Dip Narain Tiwari, Shiwan Tiwari, Gajendra Singh, Bharat Singh, Ram Kumar Singh and Sagar Singh also came there. Ram Kumar Singh also reached there. All of them tied him (P.W.2) with a electric pole and all the seven accused caught hold of Bhag Narain Tiwari and tied him with a Gamchha. Thereafter, Bharat Singh cut his throat and Gajendra Singh thrashed chhura and tore his abdomen. He has also stated that after untying from the pole he ran to his village and narrated about the occurrence to the wife of the deceased. The police officer came there. He showed the place of occurrence. The dead body of the deceased was thrown in the barren land which was taken out by the police officer. He has also stated that money was snatched from Bhag Narain Tiwari. Treatment was made to his injuries in the hospital. In his cross-examination he has stated that after untying himself when he was rushing towards the village, he saw Hari Narain Tiwari (P.W.4), Chandrika Tiwari (P.W.5), Ram Prasidh Tiwari, Ram Kishore Tiwari (P.W.1) and Brij Narain Tiwari and narrated them about the occurrence. He has stated that blood was oozing out from his knee. His statement was recorded by the Magistrate under Section 164 of the Code of Criminal Procedure. He has stated that blood was oozing out from his knee. His statement was recorded by the Magistrate under Section 164 of the Code of Criminal Procedure. He has stated that he had gone to the house of Bhag Narain Tiwari at 7 A.M. and both of them started at 8 A.M. having money. The occurrence took place at 10-11 A.M.. He had narrated about the occurrence to P.W.3, wife of the deceased. It appears that the prosecution has not been able to demolish his evidence. It appears that there is no material contradiction in his evidence. His evidence appears to be convincing. 12. P.W.3 Dharmawati Devi is the wife of the deceased. She has stated that P.W.2 Baleshwar Tiwari came to her house and asked her husband, Bhag Narain Tiwari (deceased) to go to village Dahila to purchase she-buffalo. Thereafter, her husband having Rs. 4,000/- accompanied Baleshwar Tiwari (P.W.2). She has also stated that at about 10-11 A.M. Baleshwar Tiwari (P.W.2) returned to her house and stated that her husband had been killed by the villagers of Dahila, namely, Bharat Singh, Dhirendra Singh, Ram Kumar Singh, Dip Narain Tiwari, Shiwan Tiwari (appellant), Sagar Singh and Gajendra Singh. She has also stated that Baleshwar Tiwari (P.W.2) told her that Bharat Singh cut the neck of her husband with chhura and Gajendra Tiwari thrashed knife and tore his abdomen. Dip Narain Tiwari dragged his tongue and tied it. The police officer came to her house and she gave her fardbeyan which was written by him. Her statement was read over and explained to her and thereafter she put her thumb impression. She has also stated that Baleshwar Tiwari (PW.2) also told her that Bharat Singh took Rs. 4,000/- from her husband. In her cross-examination, she has stated that blood was oozing out from the hands and legs of Baleshwar Tiwari and she became perplexed. She has denied that she has lodged a false case. It appears that the statement of this witness is based on the narration of the occurrence by P.W.2. P.W.2 Baleshwar Tiwari has deposed in his evidence that he narrated the occurrence to P.W.3, wife of the deceased. P.W.3 has supported the prosecution case. Her evidence appears to be natural and convincing corroborated by the evidence of P.W.2. 13. P.W.4 Hari Narain Tiwari has supported the prosecution case as P.W.1. P.W.2 Baleshwar Tiwari has deposed in his evidence that he narrated the occurrence to P.W.3, wife of the deceased. P.W.3 has supported the prosecution case. Her evidence appears to be natural and convincing corroborated by the evidence of P.W.2. 13. P.W.4 Hari Narain Tiwari has supported the prosecution case as P.W.1. He has stated the reason for the occurrence that Jitendra Singh was killed prior to this occurrence and the accused had suspicion that their brother Jitendra Singh was killed by Bhag Narain Tiwari (deceased) and Baleshwar Tiwari. As such, as a revenge this occurrence had taken place. In his cross-examination in para-4 he has stated he had no acquaintance with Jitendra Singh. Jitendra Singh had no enmity with Bhag Narain Tiwari. These accused persons had enmity with Bhag Narain Tiwari. He does not know whether any case was lodged against Bhag Narain Tiwari for the murder of Jitendra Singh. It appears from his evidence that P.W.4 is not an eye witness to the occurrence. It appears that he is a hearsay witness. 14. P.W.5 Dr. Manoranjan Kumar Srivastava has stated that on 20.10.1986 at 2 P.M. he held the post mortem examination on the dead body of Bhag Narain Tiwari aged about 27 years and found the following ante mortem injuries on the dead body.– (1) Incised wound 3” x ¼ ” upto trachea deep with blood clot in front of neck, cutting the neck muscles, blood vessels, ocsophagus and trachea. (2) Incised and punctured wound ½” x ¼” x abdominal cavity deep, just below umbilicus with protrusion of the intestinal loop. (3) Incised and punctured wound ½” x ¼” x abdominal cavity deep on the left side of abdomen with protrusion of intestinal loop. On dissection the loop of the intestine was found bearing sharp cut wounds at 4 places. Haemorrhagic fluid was present ½” in the abdominal cavity. (4) Abrasion 3” x ¼” on right thigh. (5) Both hands were tied with mooj rope on the back of the chest. It was cut down and removed. Blood was present ¼” in diameter on both wrist joints. (6) The tongue was protruded out and on its middle it was tied with rope, which was removed. Bruise with ecchymosis was found present on all over the tongue. (5) Both hands were tied with mooj rope on the back of the chest. It was cut down and removed. Blood was present ¼” in diameter on both wrist joints. (6) The tongue was protruded out and on its middle it was tied with rope, which was removed. Bruise with ecchymosis was found present on all over the tongue. No signs of evidence of drowning was found as it was mentioned in the inquest report that the body was found in the water. In the opinion of P.W.5 :– 1. Cause of death was haemorrhage and shock due to abdominal injuries. 2. Injury nos. 1 to 3 were caused by sharp pointed weapon and 4, 5 and 6 were caused by hard substance. 3. Time since death was within 36 hours from the time of holding autopsy by P.W. 5. The post mortem report has been marked as Ext. 1. In his cross-examination, P.W.5 has stated that one person cannot succeed in tying the tongue of another person which opinion leads to the inference of participation in commission of the acts by more than one person. 15. P.W.6 Ram Prasidha Tiwari has supported the prosecution case as P.W.1. In his cross-examination he has stated that he had seen Baleshwar Tiwari (P.W.2) fleeing away. He was telling that murder has been committed. Although he has stated that he has seen the occurrence but he has not talked about the occurrence to any one. In his cross-examination, he has denied that Baleshwar Tiwari( P.W.2) had killed the deceased and the accused had been falsely implicated. It appears that he is not an eye witness to the occurrence. 16. P.W.7 Sarju Prasad is a formal witness who proved the formal F.I.R. (Ext.2), fordbeyan of the informant (Ext. 3) and the inquest report (Ext. 4). 17. P.W.8 Dr. Hari Kishore Pd. Thakur has stated that on 19.10.1986 he examined Baleshwar Tiwari (P.W.2) while he was posted as medical officer in the State Dispensary, Morwa, and found the following injuries on his person– (i) Tying- mark with abrasion on right wrist joint (ii) Tying- mark with abrasion on the left wrist joint. (iii) Bruise with two nails torn off on left leg. (iv) Bruise with scratch below left knee joint. (iii) Bruise with two nails torn off on left leg. (iv) Bruise with scratch below left knee joint. The age of injuries found on the person of Baleshwar Tiwari in the opinion of P.W.8 was within 12 hours from the time of examination of P.W.2 by him. According to the opinion of the doctor (P.W.8) injury nos. 1 and 3 were caused by friction may be due to rubbing by a rope, and the remaining injuries were caused by hard and blunt substance. This may be due to dragging on rough and hard substance. The injury report has been marked as Ext.6. In his cross-examination, he has stated that he has found the blood due to two nails being torn off on the left leg of the injured. There was blood clot but he did not mention this fact in the injury report. 18. P.W.9 Baij Nath Singh is the investigating officer. He has stated that on 19.10.1986 he was posted in the Hathauri Police Station and he picked up rumour that a person had been killed and the dead body was lying on the barren land. After instituting Sanha no. 249 dated 19.10.1986 he started for the village Madhepura and saw the dead body. The villagers told that it was the dead body of Bhag Narain Tiwari. The dead body was lying on the barren land at Madhepura Chaur near the peripheral extremity of village Dahila. He deputed the police to watch the dead body and prepared the inquest report. He went to the house of Bhag Narain Tiwari and recorded the fardbeyan of Dharmawati Devi (P.W.3), the wife of Bhag Narain Tiwari. On the basis of the fardbeyan he instituted the case and started investigation. He took the re-statement of the informant and Baleshwar Tiwari (P.W.2). Thereafter, he went to the place of occurrence with him. He also saw the dead body and the inquest report prepared by another police officer, namely, Ganesh Tiwari. He sent the dead body for post mortem examination to Muzaffarpur. He also prepared the injury report of Baleshwar Tiwari (P.W.2) and sent him to the Government Hospital for his treatment. The injury report of P.W.2 has been marked as Ext.6. He inspected the place of occurrence as per shown to him by Baleshwar Tiwari (P.W.2). He sent the dead body for post mortem examination to Muzaffarpur. He also prepared the injury report of Baleshwar Tiwari (P.W.2) and sent him to the Government Hospital for his treatment. The injury report of P.W.2 has been marked as Ext.6. He inspected the place of occurrence as per shown to him by Baleshwar Tiwari (P.W.2). The place of occurrence was the paddy field in the western side of the road between Prayagbari Chowk and Shivdaspur. There was water 3” in depth in the paddy field. There was concrete pole in the western side of the road. In the southern side of the pole there was the field of Yogi Tiwari. The dead body was found on the ridge between the field of Yogi Tiwari and the electric pole. There was copious blood on the western side of the Bandh-road. There was footpath leading towards the road of village Dahila. In the southern side at a distance of 100 yards, there was the cattle-shed of the accused Bharat Singh. He has also stated that at the place of occurrence there was rope tied in the electric pole and it was in broken condition. He seized the broken rope and blood stained soil. He prepared the seizure list which has been marked as Ext.5. He took the statement of other witnesses on the next day and handed the investigation over to the police officer, Ram Pravesh Tiwari (who has not been examined). He has also stated that he had sent blood stained soil to the Forensic Science Laboratory, Patna, for its examination. He has also stated that Ram Pravesh Tiwari after investigation submitted chargesheet. In his cross-examination he has stated that blood was not found from the place where the dead body was found as there was water. He has also stated that he got the statement of Baleshwar Tiwari and other witnesses recorded under section 164 of the Code of Criminal Procedure before the Magistrate. He has stated that Baleshwar Tiwari (P.W.2) stated before him that he (P.W.2) had taken Rs. 1,200/- for purchasing an ox. He has also stated that he has not mentioned the statement of six witnesses in his case diary who were examined under Section 164 Cr. P.C. He has also stated that there was mark of footsteps in the field. 19. Sri Deepak Kumar, Judicial Magistrate, has been examined as D.W.1. 1,200/- for purchasing an ox. He has also stated that he has not mentioned the statement of six witnesses in his case diary who were examined under Section 164 Cr. P.C. He has also stated that there was mark of footsteps in the field. 19. Sri Deepak Kumar, Judicial Magistrate, has been examined as D.W.1. He has stated that he was never posted in the district of Muzaffarpur. He had not recorded the statement of any witness of this case. Sri Deepak Kumar Sinha is another person. He does not know as to where he was posted at that time. The evidence of D.W.1 is of no help either to the appellants or to the prosecution. 20. Learned amicus curiae, has referred the following decisions in support of his contention. In the case of Meharaj Singh (L/Nk.) Vs. State of U.P. reported in (1994) 5 SCC 188 it was found that the F.I.R. was ante-timed and there was also delay in sending the dead body to the medical officer. There was failure on the part of the prosecution to produce the eye witness. The bloodstains were also not on the clothes of the widow of the deceased who claimed to be present with her husband at the time of the occurrence. In that case it was held that she was not present at the seen of occurrence and the F.I.R. was ante-timed. In the present case F.I.R. has been lodged promptly and the dead body has also been sent without delay for post mortem examination. The eye witnesses have also been examined. The investigating officer has also found copious blood at the place of occurrence and also found broken rope tied to the electric pole where P.W. 2 is said to have been tied by the accused persons. In the facts and circumstance, this decision does not apply to the facts of the present case. In the case of Sajjan Sharma Vs. State of Bihar reported in (2011) 2 SCC 206 , there was defective framing of charge and unsatisfactory examination of the accused under Section 313 of the Code of Criminal Procedure. The accused was not named in the F.I.R. though his father and brother were duly named and they were also residents of the same village as the informant and another witness P.W.6 were. Out of eight witnesses examined, only P.Ws. The accused was not named in the F.I.R. though his father and brother were duly named and they were also residents of the same village as the informant and another witness P.W.6 were. Out of eight witnesses examined, only P.Ws. 5 and 6 claimed to have identified the accused/appellant. The statement of P.W. 5 was recorded 10 to 20 days after the occurrence and till then he did not disclose the name of the appellant as one of the accused and it was held that it was a case of false implication. In the case of Ajay Singh Vs. State of Maharashtra reported in (2007) 12 SCC 341 it was held that the examination of the accused under Section 313 of the Code of Criminal Procedure must be held faithfully and fairly. It was held that the whole object of enacting Section 313 of the Code of Criminal Procedure was that the attention of the accused should be drawn to the specific point in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give. In that case kerosene was found on the accused’s dress, but no question in this regard was put to the accused while he was examined under this provision and it was held that this was fatal to the prosecution case. In the case of Ram Kumar Pandey Vs. State of Madhya Pradesh reported in (1975) 3 SCC 815 , the F.I.R. was lodged after four hours by the father of the deceased and there was failure to mention the name of the eye witness in the F.I.R. and the dying declaration was also not mentioned. The investigating officer failed to locate the blood mark. It was held that the conviction was made wrongly. In the case of Sharad Birdhichand Sarda Vs. State of Maharashtra reported in AIR 1984 SC 1622 it was held that the circumstances not put to the accused cannot be used against him. 21. The facts and circumstances of the present case are different from those of the above cited decisions. The names of the appellants are mentioned in the F.I.R. The eye witness had also been examined. State of Maharashtra reported in AIR 1984 SC 1622 it was held that the circumstances not put to the accused cannot be used against him. 21. The facts and circumstances of the present case are different from those of the above cited decisions. The names of the appellants are mentioned in the F.I.R. The eye witness had also been examined. The investigating officer had also inspected the place of occurrence and copious blood was also found at the place of occurrence. The investigating officer had reached at the place of occurrence without delay. The evidence of witnesses stands corroborated by the medical evidence of the doctors P.W.5 and P.W.8. The occurrence took place on 19.10.1986 at about 10 to 11 A.M., that’s, in broad-day-light. The fardbeyan was recorded at 3 P.M. on the same day and F.I.R. was lodged in the same night at 9 P.M. It was dispatched on 20.10.1986 and was received in the court on 22.10.1986. It appears that there is no inordinate delay in the receipt of the F.I.R. in the office of the Magistrate. 22. The appellants have been examined under Section 313 of the Code of Criminal Procedure and the evidence against them have been disclosed and put to them in question form which have been denied by the accused/appellants. In view of the facts and circumstances stated above, the decisions cited on behalf of the appellants are not helpful to the appellants. 23. It appears that the evidence of P.W.2 and P.W.3 are convincing. P.W.2 is the injured eye witness to the occurrence and had narrated about the occurrence to P.W.3. P.W.3 made fardbeyan before the police and she has also supported the prosecution case in her evidence before the trial court. The other witnesses are hearsay witnesses but they have also supported the prosecution case. The evidence of ocular witnesses stands corroborated by the medical evidence. 24. Considering the facts and circumstances stated above, we do not find any ground to interfere with the impugned judgment. Both the appeals have got no merit, and are accordingly dismissed. 25. The bail bonds of the appellants are cancelled and they are directed to surrender before the learned trial court to serve out the sentence. 24. Considering the facts and circumstances stated above, we do not find any ground to interfere with the impugned judgment. Both the appeals have got no merit, and are accordingly dismissed. 25. The bail bonds of the appellants are cancelled and they are directed to surrender before the learned trial court to serve out the sentence. In case, they do not surrender within a period of one month from the date of receipt of the copy of the present judgment, the learned trial court will take steps to ensure that the appellants are arrested and committed to custody to serve the sentence as imposed upon them. 26. Let a copy of the first page and the last page of the judgment be supplied to Mr. Ajay Kumar Thakur, learned Amicus Curiae so that he may be paid the prescribed fee from the Patna High Court Legal Services Committee. DHARNIDHAR JHA, J.:–I agree. ?