JUDGMENT : (DELIVERED BY JUSTICE OM PRAKASH-VII) 1. Both the Criminal Appeals have been filed by the appellants against the judgment and order dated 24.9.1982 passed by the VIIth Additional Sessions Judge, Budaun in S.T. No. 599 of 1981 (State Vs. Vijay Singh and others) whereby trial court convicted and sentenced the appellants Munna Singh, Badan Singh, Vijay Singh and Lal Singh under Section 302 read with Section 34 IPC to undergo imprisonment for life. 2. During the pendency of appeals appellant no. 2 Lal Singh in Criminal Appeal No. 2446 of 1982 had died and his appeal has been abated on 2.4.2015. Thus appeal filed only on behalf of appellants Munna Singh, Badan Singh and Vijay Singh are to be dealt with by us. 3. The facts emanating from the prosecution story in a nutshell are as under : 4. On 5.9.1981 at about 5 P.M. Ram Swarup son of Har Pal Singh was returning along with his cattle from the jungle of village "Khera". When he reached near the village Chak Road, accused Badan Singh and Vijay Singh met him. They abused him and asked as to why he was taking cattle from the chak road. When Ram Swarup retorted that the chak road was of the government, on this accused Badan Singh is alleged to have lost his temper and caused an injury on the person of Ram Swarup witsagar unh a "Takola", a sharp edged weapon. On the alarm raised by Ram Swarup, his relatives Gopal and one Natthu reached there and intervened. Next morning at about 6.30 A.M. Khem Karan deceased, brother of above mentioned Ram Swarup, his father Har Pal Singh and his cousin Hardwari were tying cattle beneath a "Banyan" tree when all the four accused namely Badan Singh, Vijai Singh, Munna Singh and Lal Singh armed with "lathis" and "bhalas" reached there. Accused Badan Singh and Munna Singh were armed with "Bhalas" while the other two accused were armed with lathis. After the accused reached there, Badan Singh asked his other three companions to finish off Khem Karan as he considered himself to be a leader. On this, all the four accused started beating Khem Karan with "lathis" and "bhalas". Accused Badan Singh and Munna Singh were armed with "Bhalas" while the other two accused were armed with lathis. After the accused reached there, Badan Singh asked his other three companions to finish off Khem Karan as he considered himself to be a leader. On this, all the four accused started beating Khem Karan with "lathis" and "bhalas". On the alarm raised by Hardwari Lal and deceased Khem Karan, witnesses Ved Ram and Mool Chand who have their houses close to the place of occurrence also reached there and saw the incident. When they intervened, all the accused ran away towards their houses. Deceased Khem Karan, as a result of injuries received by him, fell down. He was immediately taken to the Police Station Ushait on a cot. On the way to the hospital from the police station he died. Thereafter, P.W. Hardwari Lal, cousin of deceased Khem Karan, went to Police Station Ushait and lodged report Ext. Ka.-1. 5. G.D. entry (Ext. Ka-1) was also made at the same time vide rapat no. 11. 6. Investigating Officer, P.W.-6 K. C. Sharma was entrusted the investigation. The inquest report (Ext. Ka-4) of the dead body of the deceased Khem Karan was prepared by S.I. Harnandan Singh on the direction of K.C. Sharma, P.W.-6, who also signed on it. Investigating Officer also recorded the statement of Head Constable Gajraj Singh and Hardwari Lal, the informant on 6.9.1981 itself. He also recorded the statement of the witnesses of inquest. While preparing the inquest report, letter to the R.I. (Ext. Ka-8); letter to Chief Medical Officer (Ext. Ka-9); letter to the concerned Police Station (Ext. Ka-10); sample seal (Ext. Ka-11); challan lash (Ext. Ka.-12) and Photo lash (Ext. Ka -13) were also prepared. Investigating Officer proceeded to the place of occurrence and inspected the spot. He also prepared the site plan (Ext. Ka-5). Witnesses Ram Swaroop, Gopal, Ved Ram and Mool Chand were also interrogated by the Investigating Officer. Blood was not found on the spot because it was a common passage and it had disappeared as the people had passed on that way. 7. Post mortem on the dead body of the deceased was performed and post mortem report (Ext. Ka-2) was prepared by the Doctor conducting the post mortem. 8. As per post mortem report dead body was brought by Constable 245 Raja Ram and Constable 617 Surendra Singh. 7. Post mortem on the dead body of the deceased was performed and post mortem report (Ext. Ka-2) was prepared by the Doctor conducting the post mortem. 8. As per post mortem report dead body was brought by Constable 245 Raja Ram and Constable 617 Surendra Singh. The deceased was aged about 22 years and was of average body built. Duration of the death was half day. Rigor mortis was present in the upper and lower extremity. 9. Following ante mortem injuries were found : (i) Punctured wound 1 cm x 0.5 cm cavity deep, button hole shape on the left side chest 4 cm away from left nipple at 3 O'clock position. Muscle and tissues underneath were congested and margins were lacerated bone deep up to left chest cavity. (ii) Punctured wound 1 cm x 0.5 cm x cavity deep button hole shape on right side 14 cm from right nipple at 11 O'clock position; muscle and underneath tissues congested and margins were lacerated. (iii) Abraded contusion 8 cm x 4 cm on left side chest face and neck extending from cheek up to left side neck position. Swelling in an area of 12 cm x 8 cm present underneath mandival bone fractured. (iv) Punctured wound 1 cm x 0.25 cm x muscle deep on left side thigh. Posterior aspect at the level of upper one third muscle and tissues congested. 10. Right and left lungs were found punctured. Half liter blood was present in the cavity of the left lung. Heart was found empty. Vessels were found collapsed. Pleura was found ruptured below injury no. 1 and 2. Small intestine was full with gases and the large intestine was full with gases, small amount of faecal matter stuck to wall. 11. Bladder was half full. In the opinion of Doctor deceased died due to shock and haemorrhage mainly due to injury no. 1. 12. After recording the statement of witnesses under Section 161 Cr.P.C. and completing the formalities the Investigating Officer has submitted charge sheet Ext. Ka-6 and Ex. Ka-7 against the appellants. 13. The concerned Magistrate took the cognizance in the matter. The case was committed to the court of sessions for trial being exclusively triable by the Sessions Court. 14. Accused appellants appeared before the court below and on 20.1.1982 charge under 302 IPC read with Section 34 IPC was framed against all the accused appellants. Ka-7 against the appellants. 13. The concerned Magistrate took the cognizance in the matter. The case was committed to the court of sessions for trial being exclusively triable by the Sessions Court. 14. Accused appellants appeared before the court below and on 20.1.1982 charge under 302 IPC read with Section 34 IPC was framed against all the accused appellants. They denied the charges and claimed their trial. 15. In ordersagar un to prove the case, the prosecution examined P.W.-1 Hardwari Lal, the informant, who had informed the police for registering the case. This witness has also claimed himself to be an eye witness. 16. P.W.-2 Ved Ram, P.W.-3 Mool Chand examined by the prosecution have also claimed themselves to be an eye account witnesses. 17. P.W.-4 Dr. O. P. Chinga has conducted the post mortem on the dead body of the deceased and has prepared the post mortem Ext. Ka-2. 18. P.W.-5 Constable Raja Ram has carried the dead body of the deceased for post mortem along with Constable Surendra Singh. 19. P.W.-6 S.I. K. C. Sharma has investigated the matter and submitted the charge sheet against the accused appellants. 20. After closer of the prosecution evidence statement of the accused appellants under Section 313 Cr.P.C. were recorded. When accused were examined under Section 313 Cr.P.C. they denied all the allegations against them and stated that they have been falsely implicated in the present case because of enmity and village party bandi. Accused Lal Singh also stated that deceased Khem Karan received injuries in the night on his "Well" and "Rice Field" and not at the place of incident as is alleged by the prosecution witnesses. 21. In their defence appellants have examined D.W.-1 Rafakat Khan, who has stated that deceased was beaten by some unknown person at other place. This fact was informed to him by Ram Swaroop. As per this witness Ram Swaroop had told him that Khem Karan was lying in an injured condition on the way. On this information many people from the village went to the place of occurrence and brought back Khem Karan in the injured condition. He also stated that deceased Khem Karan could speak feebly but he did not tell the name of the assailant. Thereafter, he was taken to the hospital. 22. Accused appellants have also filed/tendered the injury report of Ram Swaroop as (Ext. He also stated that deceased Khem Karan could speak feebly but he did not tell the name of the assailant. Thereafter, he was taken to the hospital. 22. Accused appellants have also filed/tendered the injury report of Ram Swaroop as (Ext. Kha-1) on the basis of admission of the genuineness of this document. 23. Trial court after hearing the parties vide impugned judgment and order convicted and sentenced the accused appellants as above, hence these appeals. 24. Before proceeding to record the argument advanced by the learned counsel for the parties and to discuss their submissions, we find it necessary to record the gist of the statement of the P.W.-4 Dr. O. P. Chinga : "Dr. O. P. Chinga, Medical Officer, T. B. Clinic Badaun has stated that on 6.9.1981 he was posted on the aforesaid Clinic. At 4.45 P.M. he conducted the post mortem of Khem Karan son of Harpal, aged about 22 years, resident of Khera Jalalpur, Police Station Usaihat. The body was received in a sealed cover and was brought by Constable Raja Ram and Constable Surendra Singh who had also identified the body. Duration of the death was about half day. He was of average body built. Ante mortem injuries found on the body of the deceased have been mentioned in detail in the earlier part of the judgment. On internal examination the brain/skull and membrane were of yellow colour. Two punctured wound was found on the thorax. Plura was found punctured. Both lungs were found punctured and half litre blood was found in the cavity. Heart was found empty. Vessels were found collapsed. 16/16 teeth were there. Stomach was found empty. Small intestine was found full of gases. Gas and faecal matter was found in the large intestine. Liver was found yellow. Other things were normal. In the opinion of the Doctor the death took place due to shock and haemorrhage mainly because of injury no. 1. He also stated that the ante mortem injuries found on the body of the deceased were sufficient to cause her death. Doctor had also stated that he prepared the post mortem report Ext. Ka.-2. Clothes found on the body were sealed and handed over to Constable Surendra Singh. Doctor further stated that the injuries found on the body of the deceased could be caused by "bhala" and "lathi". 25. Doctor had also stated that he prepared the post mortem report Ext. Ka.-2. Clothes found on the body were sealed and handed over to Constable Surendra Singh. Doctor further stated that the injuries found on the body of the deceased could be caused by "bhala" and "lathi". 25. In the cross examination P.W.-4 stated that there might have been variation of 1-1/2 hour in the time of death. Injury no. 1 and 2 which were found on the body of the deceased could be caused by one weapon. P.W.-4 further stated that the deceased died mainly due to injury no. 1 and the deceased might have survived for 10-20 minutes after receiving the injury no. 1. P.W.-4 further stated that due to injury no. 1 there may have been profuse bleeding. He also stated that the injury no. 4 was muscle deep and was 0.25 cm deep and could have been caused had the deceased fallen on a pointed object. 26. We have heard the learned counsel for the parties and gone through the entire record. 27. Sri Sharma, learned counsel appearing for the appellants has submitted that : (i) The prosecution was not able to prove the guilt of the accused appellant to the hilt as required under law. (ii) Motive attributed to the accused appellant has not been proved. Ram Swaroop who was the best witness to prove this fact, was not examined. (iii) Time, place of the occurrence was not established by the prosecution. P.W.-1 Hardwari Lal, P.W.-2 Ved Ram and P.W.-3 Mool Chand are not an eye account witness. (iv) Investigating officer has not taken the blood stained and plain soil from the place of occurrence. Therefore, referring to the statement of D.W.-1 Rafat Khan it was submitted that trial court has wrongly appreciated the evidence on the point of place of occurrence. (v) Prosecution witnesses has changed their version from stage to stage regarding nature of the weapon used in the crime. (vi) Prosecution case is not supported by any independent evidence. (vii) Accused appellants were falsely implicated in this case due to village rivalry. (viii) Injuries found on the body of the deceased could not be caused by the weapon assigned to the accused appellants. The medical evidence is in conflict with the oral testimony. (ix) Prosecution has suppressed the material witnesses, therefore, adverse inference should be drawn against the prosecution. 28. (viii) Injuries found on the body of the deceased could not be caused by the weapon assigned to the accused appellants. The medical evidence is in conflict with the oral testimony. (ix) Prosecution has suppressed the material witnesses, therefore, adverse inference should be drawn against the prosecution. 28. Sri N. K. Singh Yadav, learned A.G.A. appearing for the State has submitted that : (i) motive attributed to the accused appellant has been proved by the prosecution. (ii) There is direct evidence hence motive has no significance in the present matter. (iii) Non examination of Ram Swaroop and other witnesses would not be fatal to the prosecution case. (iv) Accused appellants have not tried to examine them as defence witnesses, therefore, no presumption would be drawn against the prosecution on this point. (v) Investigating Officer has satisfactorily explained the reason for not taking the blood stained and plain earth. (vi) No specific suggestion or question about the button shape injury said to have been caused by the spear was asked by the accused appellants from the P.W.-4 Doctor, therefore, no advantage could be derived by the accused appellants. (vii) Time, place and date of the offence have been established. (viii) D.W-1 is not a reliable witness. He was never interrogated or examined by the Investigating Officer. (ix) There is no conflict between the medical evidence and oral testimony. D.W.-1 has himself admitted that deceased was alive and could speak feebly when he was taken to the police station. (x) F.I.R. was lodged promptly. 29. Before proceeding to deal with the submissions raised by the parties, we also find necessary to quote the finding of the trial court on material point in the impugned order. (i) Motive attributed against the accused appellants at first place of occurrence in the evening of 5.9.1981 was not proved but from the evidence available on record it is established that relations of accused appellants on one side and the family of deceased Khem Karan on the other side were definitely strained. Therefore, the alleged "marpit" cannot be said to be judged for no reason. (ii) The blood had disappeared from the place of incident because number of persons had walked through that way after the incident. Investigating Officer has given a proper and convincing explanation for not taking blood stained earth and plain earth from the place of occurrence. (iii) Opinion of Dr. (ii) The blood had disappeared from the place of incident because number of persons had walked through that way after the incident. Investigating Officer has given a proper and convincing explanation for not taking blood stained earth and plain earth from the place of occurrence. (iii) Opinion of Dr. O. P. Chinga that after receipt of injury no. 1 deceased could survive only for 10 to 20 minutes, does not adversely affect the case of the prosecution in any manner as the same is only an opinion which cannot outweigh the evidence of the eye witnesses. (iv) Deceased Khem Karan and P.W.-1 Hardwari Lal, father of the deceased were present at the time of occurrence and they were tethering the animals at that time. (v) The other eye account witness P.W.-2 and P.W.-3 have also reached the place of occurrence just after hearing the hue and cry and they have seen the accused persons committing the present offence. (vi) Discrepancies or contradiction or exaggeration are bound to occur in the eye account witnesses as they were examined on different dates. (vii) Testimony of the D.W.-1 Rafakat Khan is not reliable. (viii) P.W.-2 and P.W.-3 are independent witnesses. Relations of the deceased with P.W.-1 would not place, this witness in the category of untrustworthy witness. (ix) Evidence of the P.W.-1, P.W.-2 and P.W.-3 find full support from the medical evidence. Injuries found on the body of the deceased could be caused by the weapon assigned to the accused appellants. (x) Prosecution was also able to establish active participation of all the accused appellants in commission of the present offence. (xi) There was common intention of the accused appellants to commit the present offence. (xii) Deceased died due to injuries caused by the accused appellants. Injuries found on the body of the deceased, as per the medical evidence, were sufficient to cause the death of the deceased in ordinary course of nature. (xiii) The case of the accused appellants fall in the purview of Section 302 IPC read with Section 34 IPC. 30. We have considered the submissions of the learned counsel for the appellant and the learned A.G.A. and also re-appreciated the evidence available on record as required by the first appellate court. 31. (xiii) The case of the accused appellants fall in the purview of Section 302 IPC read with Section 34 IPC. 30. We have considered the submissions of the learned counsel for the appellant and the learned A.G.A. and also re-appreciated the evidence available on record as required by the first appellate court. 31. First and foremost submission was raised on behalf of the learned counsel for the appellants that motive attributed to the accused appellants was not proved by the prosecution. Ram Swaroop who was said to be beaten in the evening of 5.9.1981 was not examined. Witnesses examined by the prosecution were not present on that place. Therefore, the whole prosecution case would collapse as the origin and genesis of the occurrence was not established. 32. Admittedly in the present matter prosecution did not examine Ram Swaroop. Accused appellant in their defence has filed injury report of Ram Swaroop Ext. Kha-1. This document goes to show that Ram Swaroop was medically examined on 6.9.1981 at 1.45 P.M.. He was brought by Constable No. 33 Chedda Singh Yadav. Three complaint of pain and one contused swelling were found on his person. Injury report (Ext. Kha-1) belonging to Ram Swaroop who was not examined by the prosecution clearly goes to show that Ram Swaroop received injuries on 5.9.1981 and was examined on the behest of the police on 6.9.1981 at 1.45 P.M. It is not clear from this document whether injuries mentioned in the injury sheet could be caused with the use of "Tikola" or not but this fact alone is not sufficient to discard the testimony of eye account witnesses who were present on the second spot at the time of occurrence dated 6.9.1981. Motive attributed to the accused person in the F.I.R. regarding the incident occurred in the evening of 5.9.1981 in fact has not been proved but during the course of evidence it has come that there were strained relations between both the parties due to one or the other reason. Trial court finding that prosecution did not prove the origin and genesis of the case but the evidence on record clearly suggests that there was strained relations between both the parties before the incident. It is pertinent to mention here that in cases where there are eye account witnesses the motive looses its significance. Trial court finding that prosecution did not prove the origin and genesis of the case but the evidence on record clearly suggests that there was strained relations between both the parties before the incident. It is pertinent to mention here that in cases where there are eye account witnesses the motive looses its significance. Only requirement for the court dealing with the matter is that the statement of the eye account witnesses be scrutinised carefully and cautiously. Thus we are of the view that finding recorded by the trial court regarding motive need no interference. Argument advanced by the learned counsel for the appellant is not acceptable. Prosecution case would not collapse merely on this count. 33. So far as the submissions raised by the learned counsel for the appellants on the point of place of occurrence is concerned, the offence is said to have taken place at about 6.30 A.M. The place of occurrence where the offence is said to have taken place is situated in the vicinity of the village. A path way is situated adjacent to the place of occurrence. Prosecution case is that at the time of occurrence deceased, his father Harpal and the informant were tethering the cattle beneath the "Banyan" tree. The accused appellants, armed with weapons assigned to them, came there and committed the present offence. It is also the prosecution case that when the accused fled away, the informant side had taken Khem Karan, in the injured condition to the police station. Site plan (Ext. Ka-5) also supported the prosecution case regarding place of occurrence. Accused appellants have examined D.W.-1 Rafakat Khan, who has stated that Ram Swroop had come to him for help. D.W.-1 along with Ram Swaroop and other persons reached at the Well where they found Khem Karan in the injured condition. Khem Karan was alive at that time, therefore, he was taken to the village at first and then to the police station concerned. The statements of P.W.-1 Hardwari Lal, P.W.-2 Ved Ram and P.W.-3 Mool Chand on this point find corroboration from the statement of the Investigating Officer P.W.-6 K. C. Sharma and it is clear that deceased Khem Karan was beaten by the accused appellants at the place "A" shown in the site plan. There is no inconsistency in the prosecution evidence on this point. There is no inconsistency in the prosecution evidence on this point. Non taking of the blood stained earth from the place of occurrence by the Investigating Officer is not significant in the present matter because the Investigating Officer, P.W.-6 K. C. Sharma explained the fact that it was a common passage and the blood had disappeared as the said passage was being used regularly by the passersby. 34. Deposition made by the D.W.-1 is not liable to be accepted in the matter because there is no evidence to corroborate or support his statement. Thus in our considered opinion the trial court's view regarding place of occurrence is based on the evidence available on record. 35. As far as medical evidence is concerned, three punctured and one abraded contusion were found on the body of the deceased at the time of the post mortem. All these injuries were ante mortem injuries. Doctor, who conducted the post mortem, opined that injury no. 1 and 2 which were punctured wound could be caused by the same weapon. Deceased died due to injury no. 1. He has also opined that deceased could have remained alive for about 10-20 minutes after receiving the injury. 36. Learned counsel for the appellant has submitted that injury no. 1 and 2 were of button shape. Weapon assigned to the appellant are "bhalas" and "lathis". The shape and size of spear (bhala) would not be circular, therefore, injury no. 1, 2 and 4 could not be caused by use of "bhala". Button shape injury could only be caused if the weapon used by the assailant was of pointed circular shape. 37. P.W.-4 Dr. O. P. Chinga has opined that injuries found on the body of the deceased could be caused by "bhalas" and "lathis". A perusal of the cross examination made from this witness also indicates that no question was put by the accused appellants whether button shape injuries could be caused with the use of "bhala" said to have been used in commission of crime or not. 38. In our considered view if question was not put and no opportunity was given to P.W.-4 to explain, therefore, plea taken by the learned counsel for the appellants regarding shape of the injury no. 1 and 2 is not acceptable. 38. In our considered view if question was not put and no opportunity was given to P.W.-4 to explain, therefore, plea taken by the learned counsel for the appellants regarding shape of the injury no. 1 and 2 is not acceptable. It is pertinent to mention here that it is not possible for a witness to recollect that in what manner the weapon assigned to the assailant was exactly used. Hon'ble Apex Court in the case of Gangabhavani vs. Rayapati Venkat Reddy and others, JT 2013 (12) SC 117 in para no. 17 and 18 has held as under : "NON-CROSS EXAMINATION OF A WITNESS ON A PARTICULAR ISSUE: 17. This Court in Laxmibai (Dead) Thr. L.Rs. & Anr. v. Bhagwanthuva (Dead) Thr. L.Rs. & Ors., AIR 2013 SC 1204 examined the effect of non- cross examination of witness on a particular fact/circumstance and held as under: "31. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses. (Emphasis supplied) (See also: Rohtash Kumar v. State of Haryana, JT 2013 (8) SC 181; and Gian Chand & Ors. v. State of Haryana, JT 2013 (10) SC 515). 18. Thus, it becomes crystal clear that the defence cannot rely on nor can the court base its finding on a particular fact or issue on which the witness has not made any statement in his examination-in- chief and the defence has not cross examined him on the said aspect of the matter." 39. As far as the opinion expressed by the P.W.-4 that deceased would have been alive for about 10-20 minutes after receiving injury is concerned, D. W.-1 Rafakat Khan has himself admitted that deceased was alive when he first met him. He has also admitted that when the deceased was taken for treatment and for lodging of the F.I.R to the concerned police station he was alive. The statement made by the D.W.-1 on this point is in line with the prosecution case, therefore, to this extent prosecution case also find support from the statement of D.W.-1. Thus the finding recorded by the trial court that the opinion expressed by the Doctor is not acceptable and is merely an opinion, cannot be said to be illegal. The medical evidence in the present matter is not in conflict with the oral evidence. The injuries found on the body of the deceased could be caused by the weapon assigned to the appellants. The trial court finding on the point of medical evidence is not liable to be interfered with. 40. So far as the submissions raised by the learned counsel for the appellants regarding non examination of the author of the injury report of Ram Swaroop is concerned, accused appellants have not faced trial regarding the offence said to have been committed in the evening of 5.9.1981. No charge has been framed with regard to incident dated 5.9.1981. Therefore, there was no occasion to examine the author of the injury report Ext. Kha-1 of Ram Swaroop. Thus the plea taken by the learned counsel for the appellant is not liable to be accepted. 41. No charge has been framed with regard to incident dated 5.9.1981. Therefore, there was no occasion to examine the author of the injury report Ext. Kha-1 of Ram Swaroop. Thus the plea taken by the learned counsel for the appellant is not liable to be accepted. 41. Now we take up the issue of presence of the eye account witness. P.W.-1 is cousin of the deceased, who was also tethering cattle at the time and place of occurrence, along with the deceased. P.W.-2 Ved Ram and P.W.-3 Mool Chand are the neighbours. Their houses are situated in the same vicinity. House of Mool Chand is adjacent to the house of the deceased. House of Ved Ram is also situated across the road from the place of occurrence. Time of the incident is about 6.30 A.M. in the month of September. Certainly there would have been sufficient light. Presence of the witnesses at their residence at the time of the occurrence is natural and probable. As per the site plan Ext. Ka-5 distance between the house of witness Ved Ram and the place of occurrence is about 50 paces and distance between the place of occurrence and house of witness Mool Chand is about 70 paces. The case of the prosecution is that these two witnesses have reached the place of occurrence hearing the uproar of the accused and the injured persons. Hue and cry made at the place of occurrence could easily be heard by the witnesses. It is natural conduct of the human being that when such type of incident took place people rush to scene for help. It is immaterial whether any help was extended by the witnesses to the injured or not. But this fact has come in the prosecution evidence that on being challenged, the accused persons fled away from the scene of occurrence. P.W.-2 Ved Ram and P.W.-3 Mool Chand are the eye account witnesses. They have no enmity to falsely implicate the accused appellants in the present matter. Thus in our view, the trial court finding regarding the presence of all the three eye witness account at the time of occurrence is not liable to be interfered with. The witnesses are natural and probable witnesses. Relation of P.W.-1 with the deceased also do not place him in the category of untrustworthy witness. Thus in our view, the trial court finding regarding the presence of all the three eye witness account at the time of occurrence is not liable to be interfered with. The witnesses are natural and probable witnesses. Relation of P.W.-1 with the deceased also do not place him in the category of untrustworthy witness. Looking to the place of occurrence and the situation of the houses of the witnesses they would have certainly reached the place of occurrence immediately. Contradiction and omission in the statement of these witnesses on the point of standing of the accused appellants and blow caused by respective accused are also immaterial because the testimony of eye account witnesses on material point i.e. date and time of the occurrence, use of weapon assigned to the accused appellants, role played by them are consistent and clear. The testimony of these three eye account witnesses also find support from the medical evidence. Therefore, the presence of the eye account witnesses on the place of occurrence at the time of incident cannot be doubted. Hon'ble Apex Court in the case of Gangabhavani (Supra) in para no. 9, 9.1 and 10 has held as under : "CONTRADICTIONS IN EVIDENCE: 9. In State of U.P. v. Naresh, (2011) 4 SCC 324 , this Court after considering a large number of its earlier judgments held: "In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. Exaggerations per se do not render the evidence brittle. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness 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's case, render the testimony of the witness liable to be discredited." 9.1 A similar view has been re-iterated by this Court in Tehsildar Singh & Anr. v. State of U.P., AIR 1959 SC 1012 ; Pudhu Raja & Anr. v. State, Rep. by Inspector of Police, JT 2012 (9) SC 252; and Lal Bahadur v. State (NCT of Delhi), (2013) 4 SCC 557 ). 10. Thus, it is evident that in case there are minor contradictions in the depositions of the witnesses the same are bound to be ignored as the same cannot be dubbed as improvements and it is likely to be so as the statement in the court is recorded after an inordinate delay. In case the contradictions are so material that the same go to the root of the case, materially affect the trial or core of the prosecution case, the court has to form its opinion about the credibility of the witnesses and find out as to whether their depositions inspire confidence." 42. Certainly the Investigating Officer has done some laches in the matter but he has explained the reason for the laches. Therefore, the plea taken by the learned counsel for the appellants on this count has no substance. 43. It may also be mentioned here that if there is any variation in the statement of eye account witnesses about the number of blows caused by the accused appellants the same is bound to occur in the statement of untutored witnesses. Therefore, the plea taken by the learned counsel for the appellants on this count has no substance. 43. It may also be mentioned here that if there is any variation in the statement of eye account witnesses about the number of blows caused by the accused appellants the same is bound to occur in the statement of untutored witnesses. Accused appellants surrounded the deceased and started causing spear and lathi blow then in such a situation it will not be possible for a witness present on the spot to recollect the exact number of blows caused by them. Whether all the blows inflicted by the appellants caused injuries or not is also not material. It might be possible that some of the blows inflicted by the accused appellants may have missed. It is also immaterial that whether deceased at the time of receiving the injuries was standing or fell down on earth. All these discrepancies can only be taken into consideration when the same goes to the root of the prosecution case demolishing it but in our opinion the submissions raised by the learned counsel for the appellants on this score is not fatal to the prosecution case. Defence was afforded ample opportunity to cross examine the witnesses. Nothing has come out from the cross examination of the prosecution witnesses to discredit or discard their testimony. Prosecution has been able to establish the guilt of the accused beyond reasonable doubt. All the three appellants along with co-accused Lal Singh (since died) have actually participated in commission of the present offence. They appeared at the scene of occurrence armed with deadly weapon. Accused Badan Singh exhorted to kill the deceased. Thereafter all the four accused caused injuries by their respective weapons. Deceased died on the way to the police station due to the injuries caused by the accused appellants. As per the opinion of the Doctor the injuries found on the body of the deceased were sufficient to cause his death. Injuries have also been caused by the accused appellants with the intention to cause such fatal injuries which were sufficient in ordinary course of nature to cause death. Thus, in our considered, view the trial court taking recourse of the common intention of all the accused, as defined under Section 34 IPC, has rightly convicted and sentenced the accused appellants under Section 302 IPC. 44. Thus, in our considered, view the trial court taking recourse of the common intention of all the accused, as defined under Section 34 IPC, has rightly convicted and sentenced the accused appellants under Section 302 IPC. 44. Considering the entire aspects of the matter and looking to the circumstances, we are of the view that the impugned judgment and order passed by the trial court is well discussed and the trial court has rightly held that the prosecution has succeeded to prove the guilt of the accused appellants beyond reasonable doubt. As such, the impugned judgment and order passed by the trial court is liable to be upheld and the appeal having no force is liable to be dismissed. 45. Accordingly both the appeals i. e. Criminal Appeal No. 2449 of 1982 and Criminal Appeal No. 2446 of 1982 are dismissed. Impugned judgment and order dated 24.9.1982 passed by the VIIth Additional Sessions Judge, Budaun in S.T. No. 599 of 1981 (State Vs. Vijay Singh and others) is hereby confirmed. 46. The appellants Munna Singh, Badan Singh and Vijay Singh are on bail. Their personal and surety bonds are cancelled and they are directed to surrender before the Chief Judicial Magistrate concerned immediately to serve out the remaining sentence imposed upon them by the trial court. In case they fail to surrender, as directed above, the Chief Judicial Magistrate concerned is directed to take coercive action against them in this regard. 47. Copy of this judgment along with lower court record be sent immediately to the Sessions Judge, Budaun for compliance. 48. Copy of this judgment be also placed on the record of Criminal Appeal No. 2446 of 1982.