JUDGMENT Hon’ble N.A. Moonis, J.—The instant appeal has been preferred on behalf of the quadruple appellants (i) Ram Nath, (ii) Bhugga (iii) Chunbadiya and (iv) Heera Lal against the judgment and order dated 30.9.1982 passed by the learned Sessions Judge, Banda in S.T. No. 207 of 1982 (State v. Heera Lal and others) arising out of case Crime No. 108 of 1981, police station Rajapur, district Banda whereby convicting and sentencing the appellants for the offence under Section 302/34 I.P.C. for life imprisonment, under Section 324/34 I.P.C. for two years rigorous imprisonment and under Section 394 I.P.C. for five years rigorous imprisonment. All the sentences were directed to run concurrently. Three of the above named appellants, namely, Ram Nath, Heera Lal and Chunbadiya have died during the pendency of the appeal and as such the appeal stood abated against them vide order dated 22.10.2009 and 20.11.2012 respectively. The appellant No. 2 Bhugga is now before us on whose behalf the learned counsel for the appellants is mooting his arguments. 2. The genesis of the prosecution case is narrated in the First Information Report lodged by Ram Sajeevan on 19.12.1981 at 5.40 a.m. with regard to an incident took place in the intervening night of 18/19.12.1981 between 11 to 11.30 p.m. at village Atarsui, police station Rajapur, district Banda. It is alleged that in the night in question the complainant Ram Sajeevan, his brother Ram Pratap, Smt. Savitri wife of Ram Pratap and one Devi Prasad son of Sharda Prasad of his village were sleeping in the Chaupal of their house. There was light of dibbi (country made lamp) as usual and in the night between 11-11.30 p.m. hearing the rattling sound coming from the roof of the house they woke up. They noticed light inside the Chaupal. They saw that miscreants had opened the door with an axe. The complainant flashed his torch and in that light noticed that Ram Nath Arkhu, Chunbadiya and Bhugga Arakh sons of Maha Dev and one Heera Lal son of Babu Lal all resident of his village armed with Farsa, lathi, Kulhari, Barchi barged into the Chaupal and started assaulting the complainant and his brother Ram Pratap with their respective weapons. In the meanwhile Devi Prasad took up the axe and launched a counter attack on the assailants. In the meanwhile Devi Prasad took up the axe and launched a counter attack on the assailants. They entered into Barautha of the Chaupal where assault took place and all the persons continued to assault Devi Prasad. Amongst the assailants Ram Nath carried farsa, Chunbadiya had an axe and also carried his gun, Bhugga equipped with a Barchhi (now the surviving appellant) while Heera Lal carried a lathi. After making murderous assault the miscreants took away utensils and other articles from the house of the complainant and it was mentioned that the list of items taken away by them will be given later on. Ram Nath and Chunbadiya were nurturing animus and grudge on account of old enmity with Devi Prasad as Devi Prasad was earlier in the party of the accused persons but for the last three months he had come alongwith the complainant and used to sleep at his Chaupal out of fear of the accused persons. On account of the injuries suffered by Devi Prasad he lost his life. Ram Sajeevan as also his brother Ram Pratap had also sustained injuries of barchi and Pharsa. On hue and cry various persons of the locality arrived there. All the miscreants escaped from the spot unleashing reign of terror by firing in the air. The complainant lodged a written report scribed by Suresh Prasad Tiwari on 19.12.1981 at 5.45 a.m., which was registered as case Crime No. 108 of 1981, under Sections 394 and 302 I.P.C. at police station Rajapur, District Banda and the same was entered in the general diary by constable Deo Narain Moharrir (P.W.3). 3. On the basis of the First Information Report lodged against the named accused persons as stated above, the criminal law was set in motion and investigation was entrusted to the investigating officer Indra Pal Singh S.O. (P.W.6) who swung into action. He recorded the statement of Shiv Sagar, Shiv Autar and the complainant Ram Sajeevan (P.W. 1). Ram Sajeevan was forwarded with chitti Majroobi for medical examination to S.A.D. Rajapur who was brought by CP 194 Khalil Ahmad and was medically examined on 19.12.1981 at about 8.15 a.m. by Dr. R.K. Gupta and following injuries were found on his person; (i) One incised wound on the frontal bone left to mid line 9 cm. above the root of nose 2.5 cm. x 2.5 cm. R.K. Gupta and following injuries were found on his person; (i) One incised wound on the frontal bone left to mid line 9 cm. above the root of nose 2.5 cm. x 2.5 cm. x deep to bone, margins are cut clearly, tail towards nose. (ii) Echymosis lower to right eye 1.5 cm. x 0.5 cm. (iii) Complain of pain right side of shoulder joint. (iv) One abrasion middle right forearm inner side 2.5 cm. x 0.5 cm. (v) One incised wound on the right palmer side of right hand 6 cm X 1 cm x deep to muscle, margin clearly cut, tail towards index finger. (vi) One incised wound on the palmer side of right hand proximal to the right index finger 2.5 cm x 1 cm x deep to muscle, tail towards outer side, clotted blood around the wound present. (vii) One abrasion inner side of left elbow joint 1.5 cm x 0.5 cm. (viii) One incised wound on the palmer side of left hand 4.5 cm x 1 cm x deep to bone, margins clearly out, tail towards index finger, and wound on the index finger and proximal to it. (ix) One abrasion on the back just below the neck on the mid line 2 cm x 0.5 cm. (x) One abrasion on the middle and front of right leg 2 cm x 1 cm. (xi) One abrasion on the lateral side of right malleolo. 4. According to the Doctor’s opinion injuries 1, 5, 6 and 8 caused by sharp edged weapon while other injuries caused by blunt object and injuries 1-4 were simple in nature and duration was about 8 hours old. 5. The investigating officer S.I. Indra Pal Singh reached at the place of incident at 9 a.m. on 19.12.1981 The dead body of the deceased Devi Prasad was found on the cot inside the Chaupal. Apparels of the deceased and a quilt full of blood were taken into custody and kept in a sealed cover (Exhibit Ka 15 and Ka. 16), which were sent for chemical examination. 6. The investigating officer further recorded the statement of the other witnesses. The investigating officer recovered torch of Ram Sajeevan, the complainant, and the country made lamp (dibbi) in the light of which the accused persons were identified and the memo was prepared, which was marked as Exhibit Ka. 2. 16), which were sent for chemical examination. 6. The investigating officer further recorded the statement of the other witnesses. The investigating officer recovered torch of Ram Sajeevan, the complainant, and the country made lamp (dibbi) in the light of which the accused persons were identified and the memo was prepared, which was marked as Exhibit Ka. 2. He made a spot inspection and prepared the site plan, which was proved by the investigating office as Exhibit Ka. 17. He recovered the blood stained and plain soil found in front of the Kothari and southern wall of the Barotha, which were kept in separate sealed packet and prepared its memo exhibited as Exhibit Ka. 18. The investigating officer also found a broken axe from the spot belonging to the complainant. The investigating officer also found a pair of sleeper, lathi, torch of two cell, piece of glass, towel, which is said to have been left by the accused persons on the spot and a recovery memo whereof was prepared as Exhibit Ka. 19. 7. The chemical examiner submitted report that on clothes and other articles human blood was found, which was made Exhibit Ka. 23. The investigating officer conducted the inquest and prepared inquest report (Exhibit Ka. 11). The dead body under the sealed cover was handed over to Ram Swaroop Singh and village Chowkidar Nanku with relevant papers on the same day and sent for conducting autopsy. 8. The investigating officer forwarded Ram Pratap injured for medical examination. The injuries of Ram Pratap were examined on the same day at 4 p.m. by Dr. R.K. Gupta who was brought by C.P. Narendra Singh which are given below; (i) One abrasion on the right side of face front of right ear 1 cm x 0.3 cm. (ii) One incised wound on the left upper arm outer side 3 cm x 1 cm deep to muscle, margins clearly cut tail towards front side. (iii) One lacerated wound on the left thumb nail clearly cut one and half cm x 1 cm. (iv) One incised wound on the dorsal surface right side of hand proximal to the right index finger 2 cm x 1 cm deep to muscle, margins clearly cut, tail towards finger side. 9. According to the Doctor’s opinion injuries 1, 3 were caused by blunt object and 2 and 4 by sharp edged weapon. (iv) One incised wound on the dorsal surface right side of hand proximal to the right index finger 2 cm x 1 cm deep to muscle, margins clearly cut, tail towards finger side. 9. According to the Doctor’s opinion injuries 1, 3 were caused by blunt object and 2 and 4 by sharp edged weapon. All injuries were simple and duration was about 3/4 day old. The aforesaid injury report of Ram Sajeevan and Ram Pratap were proved by Dr. R.K. Gupta (P.W. 4) in his deposition, which were marked as Exhibit Ka. 6 and Ka. 7 respectively. 10. Doctor S.D.S. Chauhan, Medical Officer (P.W.5) found the dead body in a sealed cover and conducted the autopsy on the dead body of the deceased Devi Prasad at 11.15 a.m. on 20.12.1981 which was proved by him and Exhibited as Ka. 9. On internal examination rigor mortis found present in upper and lower limbs. The following ante-mortem injuries were found on the person of the deceased Devi Prasad. (i) Incised wound 12 cm x 1 1/2 cm x cranial cavity obliquely on right side of head 1 cm above right ear, bone cut underneath and brain matter present in wound. (ii) Punctured wound with blunt margins 2.4 cm x 1.3 cm x chest cavity on mid line of back 10 cm below spinal of seventh cervical vertebrae depth directed forward and towards left. 11. On internal examination under injury No. 1 fracture of right parietal and temporal bone memberance were lacerated and congested - brain was lacerated and congested. Left lung punctured on posterior part, left side of pleura was punctured. In stomach semi digested food was found. Large intestine was full of faecal matter. In the opinion of the Doctor death was due to shock and coma resulting from injuries. 12. Despite hectic search only Heera Lal could be arrested on 20.12.1981 at his house by the investigating officer who was taken into custody and was sent to jail and other articles were deposited on 20.12.1981, which found place in the general diary prepared by him exhibited as Exhibit Ka. 6. Accused Heera Lal and other persons appeared before the Court and were taken into custody. After completing investigation in all respect the investigating officer submitted the charge-sheet against all the accused persons named in the First Information Report on 19.1.1982, which was proved by him as Exhibit Ka. 22. 6. Accused Heera Lal and other persons appeared before the Court and were taken into custody. After completing investigation in all respect the investigating officer submitted the charge-sheet against all the accused persons named in the First Information Report on 19.1.1982, which was proved by him as Exhibit Ka. 22. 13. The competent Court after submission of the charge-sheet committed the case to the Court of session. The charges were framed on 3.7.1982 against all the accused/appellants under Section 302 I.P.C. for committing murder of Devi Prasad and under Section 324/34 I.P.C. for causing injuries with their respective weapons to Ram Sajeevan and Ram Pratap and under Section 394 I.P.C. for committing robbery and loot. The accused persons abjured the charges and claimed to be tried. 14. In order to substantiate the charges against the appellants the prosecution examined six witnesses. Ram Sajeevan and Ram Pratap who are the prime witnesses of fact as they were also the injured witnesses were examined as P.W. 1 and P.W. 2 respectively. The formal witnesses examined by the prosecution are Dev Narain constable as P.W. 3 who had proved the First Information Report as lodged by the complainant, which was exhibited as Exhibit Ka. 1. Dr. R. K. Gupta, Medical Officer was examined as P.W. 4 who had examined the injured Ram Sajeevan (the complainant) and Ram Pratap brother of Ram Sajeevan on the same day and proved the medical report as Exhibit Ka. 7 and Ka. 8 respectively. Dr. S. D.S. Chauhan as P.W. 5 who had conducted autopsy of deceased Devi Prasad proved his post-mortem report as Exhibit Ka. 9. Sub Inspector Indra Pal was examined as P.W. 6 who had investigated the case as stated above and after collecting clinching material submitted the charge-sheet against all the accused persons proved by him as Exhibit Ka. 22. 15. The appellants in their statement recorded under Section 313 Cr.P.C. denied the case of the prosecution and alleged their false implication on account of enmity. They however did not lead any evidence in their defence. The trial Court after examining the prosecution evidence meticulously convicted and sentenced the appellants giving rise to the present appeal. 16. 22. 15. The appellants in their statement recorded under Section 313 Cr.P.C. denied the case of the prosecution and alleged their false implication on account of enmity. They however did not lead any evidence in their defence. The trial Court after examining the prosecution evidence meticulously convicted and sentenced the appellants giving rise to the present appeal. 16. We have heard at length Sri J.P. Pandey holding brief of Sri Mohan Lal Pandey appearing on behalf of appellant Bugga and Sri Rajeev Gupta, learned A.G.A. appearing on behalf of the State and have taken through the record. 17. The submission of the learned counsel for the appellant is that from the prosecution evidence it has not been established beyond doubt that the incident had occurred in the manner suggested by the prosecution. The prosecution is guilty of suppressing the truth and by presenting distorted version of the incident have succeeded in falsely implicating all the appellants that they had committed murder of Devi Prasad and had assaulted Ram Sajeevan and Ram Pratap and looted house hold articles. The father of the deceased Sharda Prasad and Shiv Sagar respectively have not been examined to support the prosecution case. It is further contended that no blood was found on the spot where the alleged maar-pit took place. 18. It is submitted by the learned counsel for the appellants that the appellants are absolutely innocent of the charges and have been implicated on account of enmity. The appellant Ram Nath, Bugga and Chunbadiya are all real brothers. Heera Lal is the brother-in-law of Ram Nath. The appellants have been implicated due to parti bandi. According to the prosecution case it has been shown in the site plan that Devi Prasad, Ram Pratap and his wife were sleeping on separate cots under the same roof in Chaupal on western side while the complainant was sleeping on his cot in Chaupal in eastern side. It would be highly improbable that Ram Pratap’s wife was also sleeping in the close vicinity where the deceased was sleeping who was a young person. It would be highly improbable that Ram Pratap’s wife was also sleeping in the close vicinity where the deceased was sleeping who was a young person. The real fact is that Devi Prasad had developed illicit relation with the wife of Ram Pratap, which was resented by Ram Pratap and his elder brother Ram Sajeevan the complainant and on the fateful day of incident the complainant and his brother Ram Pratap seen the deceased inside the room in the company of wife of Ram Pratap Smt. Savitri. Consequently the complainant Ram Sajeevan and his brother Ram Pratap became highly infuriated and they assaulted him and maar-pit took place amongst them. In this assault the deceased had inflicted injuries on the person of the complainant and Ram Pratap but the deceased was over powered by both the brothers who had suffered fatal injuries at their hands. Blood stained axe was found from the place of occurrence as is evident from the recovery memo prepared by the investigating officer and all the appellants have been made escape goat by misrepresenting that since the deceased had left the party of the appellants and had joined the complainant on account of which they were bearing animosity with the deceased. If that would have been the motive the deceased could have been done to death in some other place not in front of the complainant and other eye-witnesses. 19. The entire story set up by the prosecution is wholly unsubstantiated by any cogent evidence to place any reliance. No plausible explanation has been given by the complainant despite receiving extensive injuries over his person yet he alone went to the police station to lodge the First Information Report. The incident is of intervening night of 18/19.12.1981 at about 11.30 p.m. whereas the First Information Report was lodged after great delay by the complainant at 5.45 a.m. on 19.12.1981 when the distance of place of occurrence to the police station was six miles. It clearly shows that the First Information Report is an outcome of due deliberation and consultation in order to implicate the appellants. It clearly shows that the First Information Report is an outcome of due deliberation and consultation in order to implicate the appellants. After lodging of the First Information Report the complainant’s injuries were examined by Doctor R. K. Gupta, P.W. 4 and it is very surprising that the complainant’s injuries could not be examined earlier when he had sustained, according to his medical report, incised injury over his head and two incised wounds were on both the hands besides other injuries. Similarly the nature of injuries of Ram Pratap who is also stated to be an eye-witness of the occurrence and had sustained serious injuries could only be examined at about 4 p.m. on 19.12.1981 despite the fact that he had also sustained incised injuries allegedly caused by sharp edged weapon. Thus the prosecution has not come with clean hands with regard to the time, place and manner of assault. 20. According to the prosecution case the deceased Devi Prasad had sustained injuries caused by the appellants with their respective weapons like barchi, lathi, farsa, Kulhari but according to the post-mortem report he had sustained only one incised wound over his head and one punctured wound on the back below spine and the cause of death has been shown as shock and coma resulting from injuries, which also do not corroborate with the manner of assault as allegedly perpetrated by all the appellants according to the First Information Report. The deceased in all likelihood would have been done to death by the complainant and his brother Ram Pratap as the deceased had developed illicit relation with the wife of Ram Pratap and when they had found him alongwith her they had brutally inflicted injuries resulting to his death. 21. The learned trial judge has mis-read the entire evidence on record and without verifying the probity of the prosecution case convicted the appellants, hence the conviction and sentence of the sole surviving appellant Bhugga deserves to be set aside. 22. Learned A.G.A. has however vehemently refuted the arguments advanced on behalf of the surviving appellant Bhugga. 21. The learned trial judge has mis-read the entire evidence on record and without verifying the probity of the prosecution case convicted the appellants, hence the conviction and sentence of the sole surviving appellant Bhugga deserves to be set aside. 22. Learned A.G.A. has however vehemently refuted the arguments advanced on behalf of the surviving appellant Bhugga. It is submitted by the learned A.G.A. that all the accused persons who are named in the First Information Report were well known to the complainant and as is evident from the First Information Report they were bearing grudge against the deceased Devi Prasad as the latter had left their party and joined the party of the complainant three months earlier to the incident. The deceased Devi Prasad was facing fear to his life so he started sleeping at the Chaupal of the complainant. It is also evident from the evidence that Ram Nath, Bhugga and Chunbadiya all sons of Maha Dev were nurturing grudge against Devi Prasad as the latter had opened mound (Medh) of their filed and on this count the appellants had quarrelled with him. They have committed ghastly and gruesome murder on the fateful night in side the complainant’s house. They were recognised by the complainant and his brother Ram Pratap in the light of ‘dibbi’. The complainant Ram Sajeevan had seen that the latch was opened by hitting with axe and when the complainant flashed the torch he saw that Ram Nath was having farsa, Chunbadiya was having Kulhari and gun on his shoulder and Bhugga (the present surviving appellant) was having Barchhi and Heera Lal was equipped with lathi and had started assaulting the complainant and his brother. In this incident Ram Sajeevan and Ram Pratap both had sustained injuries over the body who were examined by the Doctor (P.W. 4). Ram Sajeevan had sustained as many as 11 injuries, which only reflects that he was trying to ward off the assault perpetrated by the accused persons as most of the injuries are on the upper part of the body and on both the hands. The complainant’s brother Ram Pratap who was also sleeping in the Chaupal had woke up on the shrieks of Ram Sajeevan who was also assaulted by the accused persons. The complainant’s brother Ram Pratap who was also sleeping in the Chaupal had woke up on the shrieks of Ram Sajeevan who was also assaulted by the accused persons. The two persons are injured in the present case, namely, Ram Sajeevan and Ram Pratap who have been examined by the prosecution as P.W. 1 and P.W. 2. Their testimony lend support with regard to the manner of incident. The defence has tried to set up a case that since the dead body of Devi Prasad was recovered from the house of the complainant, therefore, the complainant and his brother Ram Pratap had committed murder of Devi Prasad as he developed illicit relation with the wife of Ram Pratap. If the complainant and his brother had committed the murder of Devi Prasad then they would have thrown the dead body and would not have kept the same in their own house. 23. The suggestion with regard to the illicit relation of the deceased with the wife of Ram Pratap has been totally denied by the P.W. 2 as the wife of Ram Pratap was pregnant at the time of the incident and after a few days of the incident she delivered a child. There is also disparity in the age as Devi Prasad was a young lad of 18 years and the wife of Ram Pratap was aged about 24-25 years and any such story with regard to illicit relation does not fit under the circumstances of the case. 24. If the deceased was done to death by the complainant and his brother the father of the deceased Sarda Prasad and his brother Shiv Sagar would have lodged the First Information Report against them instead of they had arrived at the house of Ram Pratap they kept the dead body of Devi Prasad on the cot. The ocular testimony of Ram Sajeevan and Ram Pratap cannot be disbelieved. The appellants have not only committed murder of Devi Prasad but they have also taken away utensils and house hold articles. The list of utensils was submitted during the course of investigation by the complainant. It was a natural conduct on the part of the complainant while lodging the First Information Report that he could not mention the list of articles removed by the accused persons as they fled away from the spot unleashing reign of terror by firing in the air. It was a natural conduct on the part of the complainant while lodging the First Information Report that he could not mention the list of articles removed by the accused persons as they fled away from the spot unleashing reign of terror by firing in the air. At that moment the complainant was more concerned with regard to the death of Devi Prasad in their house, therefore, it was the natural conduct of the complainant that he could not have given description about the articles taken away by the accused persons, therefore, the manner of incident by causing injuries to complainant and injured, committing murder of Devi Prasad on the fateful night cannot be doubted but the possibility of robbery could not be proved. 25. It is further contended that when there is direct evidence with regard to the manner of assault perpetrated by all the accused persons, the motive looses its significance. The testimony of the injured witnesses cannot be discarded as the testimony of the injured witnesses is an inbuilt guarantee of their presence at the scene of the crime. The leaned A.G.A. has placed reliance on the decision of the Apex Court in Jodhan v. State of M.P., LAWS (SL)-2015-4-7, in Criminal Appeal No. 1683 of 2010 decided on 8.4.2015 wherein various earlier decisions have been cited as to how much value should be given to the testimony of injured witness and to discredit the testimony of injured witness some convincing evidence is required. The learned A.G.A. has relied upon para 21 of the said decision. “From the aforesaid summarization of the legal principles, it is beyond doubt that the testimony of the injured witness has its own significance and it has to be placed reliance upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and inconsistencies. As has been stated, the injured witness has been conferred special status in law and the injury sustained by him is an inbuilt-guarantee of his presence at the place of occurrence”. 26. As has been stated, the injured witness has been conferred special status in law and the injury sustained by him is an inbuilt-guarantee of his presence at the place of occurrence”. 26. The testimony of the Investigating Officer Indra Pal Singh who was examined as P.W. 6 also lends support to the prosecution case that the accused persons had unlocked the door by hitting with axe and cut marks were found on the door and small pieces of wood were also fallen but the Investigating Officer could not find any broken roof and if the same has not been recovered it would not make the entire prosecution case unreliable. The prosecution witnesses have also not committed any fault in recognizing the assailants as they were known to them. There was light of kerosene lamp and the complainant had flashed the torch of which memo was prepared by the Investigating Officer, which shows that there was sufficient source of light for identifying the accused persons. The medical evidence is also fully corroborated with the ocular testimony. P.W. 5 Dr. S.D.S. Chauhan who had conducted the autopsy of the deceased had found one incised wound of which dimension was 12 cm x 1 1/2 cm on right side of head and another was punctured wound 2.4 cm x 1.3 cm x chest cavity on the mid line back. The deceased had sustained incised and punctured wound as well and the doctor in his deposition has categorically stated that the punctured wound is the result of spear like weapon and the injuries were sufficient in ordinary course to cause death. The appellant Bhugga according to the prosecution case was armed with Barchhi (spear), which goes to the root of the case that the appellant Bhugga who was armed with spear caused injury resulting into a punctured wound to the deceased Devi Prasad who had also sustained incised wound on his head, which were sufficient in ordinary course to cause his death besides this the P.W. 2 Ram Pratap in his deposition has stated that he had received two incised injuries caused by spear and pharsa which were wielded by Bhugga and Ram Nath. The medical report of the P.W. 2 Ram Pratap clearly shows that he had sustained injuries with sharp edged weapon. The medical report of the P.W. 2 Ram Pratap clearly shows that he had sustained injuries with sharp edged weapon. The P.W. 1 Ram Sajeevan had also sustained 4 incised wounds besides abrasions, which were caused by sharp cutting weapon and blunt object. the defence story that the deceased Devi Prasad had a fight with P.W. 1 and P.W. 2 who attacked on them with axe is inconsistent with the medical evidence and highly improbable that one person who is too young had attempted to make assault on both the injured whereby they had sustained injuries. 27. The learned trial Judge has committed no error in convicting the accused/appellant Bhugga alongwith other under Section 302 I.P.C. with the aid of Section 34 I.P.C. for life imprisonment and convicting for the offence punishable under Section 324/34 I.P.C. for causing injuries to the complainant Ram Sajeevan and his brother Ram Pratap. The learned trial Court on the basis of ocular testimony and documentary evidence was fully satisfied that the prosecution has proved the case beyond reasonable doubt. Though the list of house hold articles was handed over to the investigating officer, which had been taken away by all the accused persons after killing Devi Prasad and causing injuries to the complainant and his brother, but it was not exhibited during the course of trial yet the oral testimony of the two injured witnesses cannot be discarded who had ascribed positive role of all the assailants. There is no improvement in the prosecution case hence the question of any deliberation amongst the members of prosecution party stands completely ruled out, therefore, the impugned judgment and order passed by the Court below deserves to be upheld while setting aside conviction and sentence under Section 394 I.P.C. 28. In order to appreciate the arguments advanced by the learned counsel at bar it is necessary to analyse the rival submissions in the light of prosecution case. The statement of the injured witnesses recorded by the trial Court has assumed great significance. P.W. 1 Ram Sajeevan is the brother of P.W. 2 Ram Pratap who are the injured witnesses and the incident had occurred inside their house, therefore, their presence at the place of occurrence cannot be doubted. They were the natural witnesses of the incident occurred between 11 to 11.30 p.m. in the intervening night of 18/19.12.1981. P.W. 1 Ram Sajeevan is the brother of P.W. 2 Ram Pratap who are the injured witnesses and the incident had occurred inside their house, therefore, their presence at the place of occurrence cannot be doubted. They were the natural witnesses of the incident occurred between 11 to 11.30 p.m. in the intervening night of 18/19.12.1981. When the P.W. 1 and P.W. 2 heard the rattling sound on the roof they woke up and raised an alarm. They had recognised the accused persons in the light of torch and in the country made kerosene lamp (dibbi), which was kept lighted in the Chaupal and by that time all the accused persons, namely, Ram Nath, Bhugga, Chunbadiya and Heera Lal barged into Chaupal by breaking the door with an axe. When the accused persons were brutally assaulting the complainant and his brother with their respective weapons i.e. lathi, farsa, Barchhi and Kulhari, the deceased Devi Prasad took a Kulhari and intervened to protect Ram Sajeevan and Ram Pratap and when the scuffling took place between the deceased and the accused persons he entered into Barotha where he was over powered by the accused persons and was inflicted with fatal injuries. Thereafter Devi Prasad was laid on the cot over the quilt. He had suffered incised injury over right side of head and a punctured wound on mid line of back. The two injuries proved to be fatal. When the deceased was trying to ward off the assault perpetrated by the accused persons upon the complainant and his brother he was inflicted injury by Ram Nath and Bhugga with farsa and Barchhi as the nature of injuries sustained by the deceased is fully corroborated by the ocular testimony as well as by the statement of the Doctor who had conducted the autopsy of the deceased. 29. The contention of the learned counsel for the appellant is that Ram Pratap and Ram Sajeevan had seen the deceased in a compromising position with the wife of Ram Pratap, they became infuriated and started inflicting injury to Devi Prasad and Devi Prasad had attacked upon them with Kulhari do not stand the test of credibility as the injured witnesses have sustained incised wound as well as abrasion which does not fit in with the explanation put forth by the defence with regard to the injuries of the complainant and his injured brother Ram Pratap. It is pertinent to mention here that the house of the complainant situated in village Atarsui, which is a thatched house. The place of occurrence has been shown in the site plan with the mark-X. Inside the Barotha the blood was found up to two and half feet on the wall and the blood was also found on the floor in front of door in the Chaupal. The complainant was sleeping on his cot on the eastern side at place ‘A’ and on the western at place ‘B’ the deceased Devi Prasad, at place ‘C’ Ram Pratap who is the brother of the injured and at place ‘D’ his wife Savitri were sleeping and at ‘B’ place where the deceased was sleeping his dead body was found. On the eastern side of the house of the complainant, house of Bal Karan has been shown and on the northern side house of Maha Dev who is the father of the accused Bugga and Chunbadiya has been shown and at the southern side the house of the father of the deceased is shown. All the accused persons were recognised by Ram Sajeevan as they were known to him. They have been recognised in the torch light as well as in the light of small lamp, as visibility of villagers is conditioned to light of country made lamps. Therefore, the accused persons who belonged to the same village there could not be any mistake with respect to their identity. There is consistent statement of the complainant and his brother that when the accused persons entered into the Chaupal they were recognized in the torch light. As soon as they came inside the Chaupal they started assaulting with lathi, farsa, Barchhi and Kulhari. When the accused had attacked upon them Devi Prasad took the Kulhari and grappling took place with him. 30. The accused persons belong to ‘Arakh’ community. The deceased Devi Prasad was in the party of Arakh and three months prior to the incident he had joined the complainant party. On account of the party bandi the accused persons wanted to teach him a lesson and they were bearing grudge against the complainant as the latter had given shelter to Devi Prasad who used to sleep alongwith complainant in his house out of fear. On account of the party bandi the accused persons wanted to teach him a lesson and they were bearing grudge against the complainant as the latter had given shelter to Devi Prasad who used to sleep alongwith complainant in his house out of fear. P.W. 1 and P.W. 2 were put to lengthy cross-examination by the defence and nothing has been elicited by the defence to discredit their testimony. Ram Sajeevan the complainant was assaulted by Heera Lal and Ram Nath with lathi and farsa who had sustained as many as four incised wound and abrasion while Ram Pratap according to his testimony was assaulted by Bhugga and Ram Nath with Barchhi and farsa who had sustained four injuries out of which two were incised wound and one lacerated and one abrasion. Their statement with regard to the manner of assault is fully corroborated by their medical report. 31. The deceased Devi Prasad had sustained two serious injuries one on the right side of the head and the other on the mid line of back. The injury on the mid line of back was found to be a punctured wound. On internal examination of the injury of the deceased fracture of right parietal and temporal bone was found. Brain was lacerated, membrence were lacerated and congested, pleura was punctured, lungs punctured on posterior part. Chamber of heart was empty. There is no reason to doubt about the testimony of the injured witnesses with regard to the manner of assault committed by all the accused persons. Minor discrepancy here and there in their statement do not tantamount that the statement of injured witnesses are absolutely untrustworthy. It has been held in Jodhan’s case (Supra) that the testimony of an injured witness stands on higher pedestal than other witnesses. The ocular testimony of the injured witnesses as held by the Apex Court in the aforesaid decision is built in guarantee of their presence at the scene of the crime and such witnesses would not leave the actual assailant to go unpunished. 32. The ocular testimony of the injured witnesses as held by the Apex Court in the aforesaid decision is built in guarantee of their presence at the scene of the crime and such witnesses would not leave the actual assailant to go unpunished. 32. A third story has been developed by the accused persons in their statement recorded under Section 313 Cr.P.C. that the deceased had illicit relation with the wife of P.W. 2 Ram Pratap and he was called by his wife and that Devi Prasad had been killed by the complainant and his brother due to this reason and they had been implicated falsely due to party bandi. The suggestions have been negatived by lengthy cross-examination of the prosecution witnesses. It is also well-settled that where positive evidence against the accused is clear, cogent and reliable question of motive is of no importance. The testimony of the injured witnesses also cannot be disbelieved merely because they are related as P.W. 1 is the brother of P.W. 2. The Hon’ble Apex Court has occasioned to consider whether the evidence of interested witnesses can be relied upon in the case of Dharnidhar v. State of U.P. and others, 2010 (7) SCC 759 , held in the following manner; “There is no hard and fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. A pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person who is closed to the victim. Where the presence of the witnesses is proved to be natural and their statements are nothing but truthful disclosure of actual facts leading to the occurrence and the occurrence itself, it will not be permissible for the Court to discard the statement of such related or family witnesses.” 33. The minor variations and contradictions in the testimony of the prosecution witnesses would not go to the root of the case to belie the entire prosecution case particularly when the motive for the occurrence against the deceased has clearly been elicited by the witnesses. The accused persons are known to the prosecution witnesses who have committed no error in identifying them in the light of torch when flashed upon them. The accused persons are known to the prosecution witnesses who have committed no error in identifying them in the light of torch when flashed upon them. A known person can be identified from peculiar feature of gait even if the occurrence took place at night. Both the injured witnesses have denied the factum of any illicit relation with the wife of P.W. 2 of the deceased. The deceased was done to death in a very gruesome manner who was a young boy of 18 years of age and in case as the defence has set up a case that the complainant and his brother has committed his murder, the father of the deceased would have left no stone unturned to take action against them and they would not have been spared by them. It is highly improbable that if the complainant and his brother had committed murder of Devi Prasad and the dead body was kept by them in his own house until the Investigating Officer arrived at the place and had found the dead body on the cot over the quilt and then his cloths (shirt, vest etc. of the deceased) were removed and was taken into custody for conducting inquest of the dead body. 34. Minor contradictions or variations with regard to lodging of the First Information Report will not disturb the substratum of the prosecution version. The learned trial judge has considered and weighed the evidence of the prosecution and convicted all the accused persons under Section 302 I.P.C. with the aid of Section 34 I.P.C. for life imprisonment. On the scrutiny of the entire evidence on record it is evidently clear that the surviving appellant Bhugga who was assigned the role of causing injury with spear (Barchhi) and the deceased had sustained punctured wound on his person and therefore we are at the irresistible conclusion that the appellant Bhugga had actively participated in the commission of offence who had shared common intention with all other accused persons. The attack was premeditated as all the accused had come fully prepared to do the overt act. At that juncture when the occurrence took place suddenly and the witnesses were injured it was quite natural not to have noted minute details of injuries caused to the deceased. The attack was premeditated as all the accused had come fully prepared to do the overt act. At that juncture when the occurrence took place suddenly and the witnesses were injured it was quite natural not to have noted minute details of injuries caused to the deceased. The number of injuries on the deceased consistently supported by the medical as well as ocular testimony of the injured witnesses cannot be doubted. It is proved to the hilt beyond all reasonable doubt that the fatal injury was inflicted by the surviving appellant Bhugga who was having spear who has acted in furtherance of common object and shared common intention of all and had caused injury to the deceased on vital part and gets corroboration from the medical evidence as stated by the Doctor in his deposition who was examined as P.W. 5 that cumulative effect of the injuries were sufficient in the ordinary course of nature to cause death. 35. From the appraisal of the evidence on record the prosecution has utterly failed to prove factum of dacoity by cogent evidence. The list of stolen articles taken away by the appellants was handed over to the Investigating Officer during the course of investigation by the complainant but the said list of stolen articles was not legally proved during the course of trial, hence the conviction and sentence as passed by the learned trial judge under Section 394 I.P.C. unsustainable and is liable to be set aside. 36. In view of the aforesaid analysis we do not perceive any error in the impugned judgment of conviction and order of sentence passed by the learned trial judge, therefore, under the circumstances of the case we uphold the conviction and sentence awarded against the surviving appellant Bhugga under Section 302 read with Section 34 I.P.C. to undergo life imprisonment and under Section 324 read with 34 I.P.C. for two years rigorous imprisonment, which shall run concurrently. 37. In the above conspectus, the cumulative effect of appreciation of evidence is that we allow the appeal in part by setting aside the conviction under Section 394 I.P.C. and maintaining the conviction and sentence under Section 302 read with Section 34 I.P.C. and under Section 324 read with 34 I.P.C. Accordingly the appellant Bhugga who is on bail be taken into custody forthwith to serve out the sentence as modified by this Court. Let the record be sent to the trial Court for necessary compliance. Judgment be certified and placed on record.