JUDGMENT : MOHAMMAD RAFIQ, J. This appeal has been filed by accused-appellants Ram Sahai and Ram Avtar challenging the judgment of Court of Sessions, Tonk dated 21.06.1991, whereby they were convicted for offence u/s.302 IPC read with Section 34 IPC and sentenced to life imprisonment with fine of Rs.100 each, in default of payment of which, they were to further undergo simple imprisonment of one month. 2. The facts of the case are that Ram Lal Son of Hardeva lodged a written report with the Police Station, Piplu on 01.08.1989 wherein it was alleged that he received an information in the village that dead body of a person was lying on the way near Deengra which proceeds to village Kutka. On receiving this information, being a member of the Gram Panchayat, he reached at that place and found dead body of Madya, resident of village Beejwad. It was also mentioned in the report that the deceased received various injuries on his person. On receiving the aforesaid information, a case for offence under Section 302 IPC was registered at Police Station, Piplu (Tonk) and investigation commenced. After completing the investigation, the Investigating Agency filed charge sheet against both the accused appellants. The trial court then framed charges against them. Both the accused-appellants denied the charges and claimed to be tried. The prosecution produced as many as 24 witnesses and exhibited 51 documents. The accused appellants were examined under Section 313 Cr.P.C. and they produced two witnesses alongwith certain documents in their defence. After hearing both the parties, the learned Sessions Judge, Tonk convicted both the accused-appellants for offence under Section 302 read with 34 IPC as stated above. Hence this appeal. 3. We have heard Shri Biri Singh, learned senior counsel assisted by Shri Rajesh Choudhary, learned counsel for accused-appellants and Smt. Sonia Shandilya, learned Public Prosecutor for the State. 4. Shri Biri Singh, learned senior counsel for the accused-appellants submitted that the prosecution has wrongly planted Gopal (PW10) as eye witness, whereas this case is though based on circumstantial evidence, but the chain of circumstances has many missing links and is not complete. In fact, he is not an eye witness. His statement under Section 161 Cr.P.C. (Ex.D6) was recorded by Investigating Officer Mahendra Singh (PW24) belatedly on 10.08.1989 i.e. nine days after the incident and there is no specific explanation about such inordinate delay. In fact, he is not an eye witness. His statement under Section 161 Cr.P.C. (Ex.D6) was recorded by Investigating Officer Mahendra Singh (PW24) belatedly on 10.08.1989 i.e. nine days after the incident and there is no specific explanation about such inordinate delay. There is major discrepancy in what he has stated in the Court as PW10 that he saw the deceased being beaten by accused-appellants about 5-6 pm, whereas all the witnesses of the last seen are saying that the deceased left with the accused around 7.30-8.00 pm when it was time of dinner. This clearly raises a doubt about the credibility of his being eye witnesses. If at all, he was an eye witness, why he did not disclose this to anybody, has not been explained. It would be a case which is founded on circumstantial evidence as also on the basis of eye witnesses statement, whereas both cannot go together as one would rule out the other. 5. It is argued that the prosecution has utterly failed to prove the intention and motive on the part of the accused-appellants. The witnesses of the motive on the basis of alleged incident which took place 15-20 days back being named as Shri Lal and Ram Sahai as those who had an altercation with the deceased, but not with Ram Avtar. Even the witnesses of last seen have also not stated specifically that Ram Avtar was there with Ram Sahai at the time of incident. The case of the prosecution in so far as Ram Sahai, thus stands on weak footing. The written report (Ex.P1) on the basis of which FIR was registered was submitted by Ram Lal to Police Station at 10.20 AM on 1.8.1989 to SHO Police Station Peeplu, whereas Shri Mahendra Singh, SHO Police Station Peeplu, who was also the Investigating Officer has stated that he reached the place of occurrence at 8.30 in the morning of 1st August, 1989 in connection with investigation of a ‘mrig’ FIR no.2/1989 under Section 174 Cr.P.C. The genesis of the incident has thus been completely suppressed from the Court. Learned senior counsel argued that Ram Lal (PW1), the informant who submitted the written report has virtually disowned the written report, yet the prosecution has not get him declared hostile. The prosecution, therefore, would be bound by his testimony. Learned senior counsel argued that Ram Lal (PW1), the informant who submitted the written report has virtually disowned the written report, yet the prosecution has not get him declared hostile. The prosecution, therefore, would be bound by his testimony. While in the written report, he has named the deceased as Madya S/o Goru Meena aged 25 years R/o village Beejwad, P.S. Peeplu and also categorically stated that he knew him personally, but in the Court statement Ram Lal has said that this fact stated by him in written report was incorrect. 6. Learned senior counsel argued that since all the prosecution witnesses had already reached the place of incident, which is evident from the fact that the attesting witnesses of inquest report (Ex.P2) were Ram Lal (PW1), Sujya (PW2), Jhumra (PW6) and Badrilal (PW9). Site plan (Ex.P3) was prepared on 1st August, 1989, the attesting witnesses whereof were Jhumra (PW6) and Badrilal (PW9). The inspection memo of dead body (Ex.P35) prepared on 1st August, 1989 was attested by witnesses Ram Lal (PW1) and Sujya (PW2) and seizure of the clothes of the deceased was made vide Ex.P15 on 1st August, 1989 itself, the attesting witnesses whereof were Badrilal (PW9) and Harinarayan (PW15). Controlled sample soil (Ex.P4) was seized on 1st August, 1989 itself, attesting witnesses of which were Ram Lal (PW1) and Ramdev. It is thus evidently clear that all these persons were closely related to deceased and had told his name to the Investigating Officer, which is why the Panch of Gram Panchayat Ramlal had disclosed his name in the written report. 7. Learned senior counsel argued that there is no reason to believe that all these witnesses would not have told the Investigating Officer/SHO about the incident, which took place 15- 20 days ago, alleging that Shri Lal and his son Ram Sahai had an altercation with Madya alleging that he (Madya) stole their buffaloes and threatened to kill him. Even then why no such allegation has found place in the written report (Ex.P1) has not been explained. This shows that story of the alleged altercation about 15-20 days ago on allegation of theft of the buffaloes of the accused party by the deceased is a concocted story. Even then why no such allegation has found place in the written report (Ex.P1) has not been explained. This shows that story of the alleged altercation about 15-20 days ago on allegation of theft of the buffaloes of the accused party by the deceased is a concocted story. For the same reason, these witnesses, who have subsequently appeared in the Court have stated that the deceased had left their house to give evidence of last seen against the accused that deceased left his house with the accused, has also not been disclosed in the written report. If these witnesses were very much present in the morning and throughout during the day all memos were prepared by the Investigating Officer, it cannot be believed that they would not disclose this fact to him. This clearly show that these witnesses have been subsequently planted. 8. It is argued that Bhura (PW12) in the statement before the Court has also given a false evidence about the last seen against the accused-appellants. He has alleged that while he was returning back from his well with his ox, he saw Madya pulling his cycle with Ram Sahai sitting at the back, who was carrying a ‘lakri’. On his enquiry, Madya told that they were going for an urgent work. In cross examination, this witness when confronted with his police statement (Ex.D7) wherein he did not name Ram Sahai, he clarified that all these witnesses are highly interested witnesses and related to the deceased. Ram Lal (PW1) happens to be the uncle of the deceased. Jhumra (PW6) is also one of the relatives of deceased. Badri (PW13), Sarpanch of Gram Panchayat also happens to be relative of the deceased. Bhura (PW12), Ramniwas (PW14) and Harinarayan (PW15) are also resident of the same village of deceased. 9. Learned senior counsel argued that the seizure of the pocket diary allegedly of Ram Sahai vide Ex.P41 is also a planted evidence. Ram Sahai was arrested on 8.8.1989 vide arrest memo Ex.P33. There is no mention of the fact that ‘dhoti’ that he was wearing contained blood stains. However, on the same day, another memo (Ex.P45) with regard to seizure of his ‘dhoti’ was prepared. Ram Sahai was arrested on 8.8.1989 vide arrest memo Ex.P33. There is no mention of the fact that ‘dhoti’ that he was wearing contained blood stains. However, on the same day, another memo (Ex.P45) with regard to seizure of his ‘dhoti’ was prepared. Similarly, when Ram Avtar was arrested vide Ex.P44 on 8.8.1989, no mention of the fact that there was blood stains on his shirt was made in the memo, but seizure of the shirt was separately prepared vide memo Ex.P46. The attesting witnesses to both these memos were Rajaram and Ashram Ahmed, who have not been examined before this Court, therefore, the blood stains allegedly found on the ‘dhoti’ and shirt of the accused as per FSL report (Ex.P50 & 51) is not substantiated because such recovery cannot be held admissible in evidence. 10. As regards Sultan (PW5), the alleged witness of last seen, learned senior counsel argued that his statement (Ex.D2) was recorded by the police on third day from the death of Madya, whereas his such statement contains the date 1.8.1989. Similarly, Chhotu (PW7), another witness of last seen has also in cross examination stated that when the police enquired from him on the third day, he told them about the incident, which also shows that his statement (Ex.D3) was wrongly shown to have been recorded on 1.8.1989 by the police. Apart from the contradictions between their statements, as per these witnesses, the deceased Madya had left his house without taking dinner. But semi digested food found in the small intestine as per the postmortem report (Ex.P19) again creates a doubt about the time of incident, which clearly shows that he must have been murdered by someone three hours after he had taken his dinner. 11. Learned senior counsel argued that the learned trial court has erred by not appreciating the fact that as per the case of the prosecution, the accused-appellants were armed with ‘lathis’, whereas according to postmortem report, deceased received fatal injuries by sharp edged weapon. The Investigating Officer has concocted the recovery of diary allegedly of the accused Ram Sahai, whereas this diary was of his younger brother Ram Phool and his name was by overwriting made Ram Sahai. Besides, the pages from the date 1st to 8th were torn in this diary wherefor no explanation has been given. 12. The Investigating Officer has concocted the recovery of diary allegedly of the accused Ram Sahai, whereas this diary was of his younger brother Ram Phool and his name was by overwriting made Ram Sahai. Besides, the pages from the date 1st to 8th were torn in this diary wherefor no explanation has been given. 12. Learned senior counsel argued that even as per the postmortem report, the nature of injuries sustained by the accused are mostly simple by blunt weapon. Dr. Narendra Choudhary (PW19) has stated that injury nos.1, 2 and 4 were of grievous nature and injury no.3 was simple, but by sharp edged weapon. The injury nos.1, 2 and 4 were respectively the fracture of tibia and fibula bone of the left knee joint; the fracture of radius and ulna bone of the left hand and fracture of humerus bone of the right hand. The intention of the accused-appellants was thus not to commit murder of the deceased and was only to teach him a lesson. The fact that even though multiple injuries were caused but none of the injuries was caused on the vital part of his body indicates that the accused had no intention to commit murder. It is argued that there is no evidence whatsoever that accused had any prior meeting of mind or premeditation to commit murder of deceased. Learned counsel therefore alternatively argued that the guilt of the accused-appellants would fall within the purview of culpable homicide not amounting to murder as incident appears to have taken place at the spur of moment in the heat of passion in a sudden quarrel, accused having not caused injury on the vital part of the body, cannot be held to have taken any undue advantage of the situation, therefore, the case of accused-appellants would fall in exception (4) to Section 300 of IPC. 13. Smt. Sonia Shandilya, learned Public Prosecutor opposed the appeal and submitted that evidence in the present case has convincingly proved guilt of the accused-appellants beyond reasonable doubt. Referring to the statement of Sujya (PW2), Lakhma (PW3), Gopi (PW4) and Jhumra (PW6), learned Public Prosecutor submitted that all these witnesses have narrated the incident, which had taken place 15-20 days ago when the accused had an altercation with the deceased alleging that it was he (deceased), who had stolen their buffaloes. Referring to the statement of Sujya (PW2), Lakhma (PW3), Gopi (PW4) and Jhumra (PW6), learned Public Prosecutor submitted that all these witnesses have narrated the incident, which had taken place 15-20 days ago when the accused had an altercation with the deceased alleging that it was he (deceased), who had stolen their buffaloes. It is argued that these witnesses proved the presence of each other at the time of said incident. Since Shri Lal happens to be the father of the accused Ram Sahai, merely because another brother Ram Avtar was not named by all these witnesses, would not prove fatal to the prosecution case because when the incident took place 15-20 days ago, he certainly accompanied Ram Sahai. It is argued that there are witnesses of last seen Sultan (PW5), Chhotu (PW7), Bheru (PW8), Badrilal (PW9), Bhura (PW12), Badri (PW13) and Rameshwar (PW16). All these witnesses are bonafide and genuine witnesses and it cannot be said that they were planted subsequently. Presence of all these witnesses when Investigating Officer Mahendra Singh visited the place from where the dead body was recovered, was quite natural. Since their statements u/s.161 Cr.P.C. were recorded on the same day i.e. 1st August, 1989, their genuineness cannot be questioned. Learned Public Prosecutor submitted that two of the witnesses namely; Sultan (PW5) and Chhotu (PW7) have in cross examination averred the same by saying that their police statement was recorded on 3rd day of the incident, which appears to be result of the leading question by the cross examiner and therefore cannot in any manner cause a dent to their credibility. 14. Learned Public Prosecutor submitted that one ‘lathi’ each has been recovered at the instance of Ram Avtar vide memo Ex.P22 and Ram Sahai vide memo Ex.P21. Badri S/o of Chandra (PW22) and the Investigating Officer Mahendra Singh (PW22) have proved such recoveries. One cycle each has been recovered from Ram Sahai and Ram Avtar vide Ex.P23 and Ex.P24 respectively on 12.8.1989. While blood stained ‘dhoti’ of Ram Sahai was recovered vide memo Ex.P45, the shirt of Ram Avtar recovered at his instance vide Ex.P46 was found to contain human blood as per the FSL report Ex.P50 and Ex.P51. It is argued that diary (Ex.P41) was recovered not from Ram Sahai, but from the place of incident. While blood stained ‘dhoti’ of Ram Sahai was recovered vide memo Ex.P45, the shirt of Ram Avtar recovered at his instance vide Ex.P46 was found to contain human blood as per the FSL report Ex.P50 and Ex.P51. It is argued that diary (Ex.P41) was recovered not from Ram Sahai, but from the place of incident. The accused Ram Sahai in his examination under Section 313 Cr.P.C. has not given any explanation inasmuch as he has not disputed the fact that this diary belongs to him. It is submitted that Ram Sahai happened to be hard core criminal, which is evident from the statement of SHO Mahendra Singh (PW24), who has stated that accused was absconding in several cases in the past. When the police reached his location for arresting him, he resisted his arrest and attacked the police party. The report about that incident was Ex.P17, on the basis of which the FIR for offence under Sections 224, 225, 353, 332 and 308 IPC was registered against him. So far as Bhura (PW12) is concerned, he in the examination-in-chief, mentioned that Madya was pulling a bicycle and Ram Sahai was sitting on the back seat with a ‘lakri’ and that both accused present in the Court were there. In cross examination, he has again clarified that he had seen both the accused. 15. Learned Public Prosecutor argued that Gopal (PW10) was a defence witness. The reason that why his statement under Section 161 Cr.P.C. was recorded by the police on 10th August, 1989 has been explained by this witness because he has stated that Ram Sahai threatened to kill him, therefore, he did not disclose about the said incident to anyone in the village and remained silent for about 10 days for fear of his life. 16. Learned Public Prosecutor citing judgment of the Supreme Court in Rameshbhai Mohanbhai Koli & Ors. vs. State of Gujarat- (2011) 11 SCC 111 submitted that even if the eye witnesses are disbelieved, the Court can still convict the accused on the basis of circumstantial evidence. 17. We have given our anxious consideration to the rival submissions and perused the material on record. 18. vs. State of Gujarat- (2011) 11 SCC 111 submitted that even if the eye witnesses are disbelieved, the Court can still convict the accused on the basis of circumstantial evidence. 17. We have given our anxious consideration to the rival submissions and perused the material on record. 18. We may at the outset observe that mere non-production of the ‘mrig’ report of the proceedings u/s.174 Cr.P.C. on record of the present case would not cause much dent to the prosecution case because this fact has even otherwise been candidly admitted by the Investigating Officer Mahendra Singh (PW24) that he received a wireless information through police outpost Jharana (QST) that a dead body was lying near village Deengra on the way leading to Kutka. This has been proved by Kishore Singh (PW11), who has stated that he was Constable posted in police outpost Jharana when Ram Lal of Naya Teela came and informed about the dead body lying near the way leading to Deengra. He in turn informed the Police Station Peeplu about the same. On that, the SHO lodged the ‘mrig’ report no.2/1989 and made an entry in the rojnamcha, copy of which was Ex.P25. The rojnamcha entry has been made at 10.00 am therein it is mentioned that the person who gave the information to the police outpost was Ram Lal. SHO took the precaution of lodging the FIR No.2/89 under Section 174 Cr.P.C. and then the SHO along with ASI Nepal Singh and Contables Ganga Singh and Kanhaiya Lal proceeded towards Deengra by giving charge of Police Station to Head Mohrar. The SHO who started at 10.00 am and when reached the place where the dead body was lying, he was presented with a written report by Ram Lal at 10.20 am, who had by then informed the police outpost. Even the argument that the ‘mrig’ report has not been produced, is not factually correct. ‘mrig’ report no.2/1989 has been produced on record as Ex.P2. 19. Contention that the investigating officer reached the place of incident at 8.30 am also cannot be countenanced in view of the statement of Investigating Officer in his cross examination. Regular FIR no.65/1989 (Ex.P42) was chalked out at 7.30 pm on 1.8.1989. ‘mrig’ report no.2/1989 has been produced on record as Ex.P2. 19. Contention that the investigating officer reached the place of incident at 8.30 am also cannot be countenanced in view of the statement of Investigating Officer in his cross examination. Regular FIR no.65/1989 (Ex.P42) was chalked out at 7.30 pm on 1.8.1989. The reason for this was that the distance between the place where the dead body was lying and the Police Station was 16 kms, as indicated in FIR Ex.P42 and it took about 20 minutes to reach the place of occurrence as indicated in the rojnamcha (Ex.P35). These minor discrepancies therefore cannot be a reason to discard the prosecution evidence in entirety. 20. Coming now to the argument that Gopal (PW10) is a planted witness and he cannot be an eye witness, when we analyse his statement, we find substance in the argument and, therefore, are persuaded to discard his testimony for the stated reasons. In examination in chief, he has stated that on a particular day about 4 months ago, he was going on the way leading from Beejwada towards Deengra. He was on his cycle. Suddenly he heard sound of hue and cry. When he saw in that direction, the accused Ram Sahai and Ram Avtar were beating Madya by ‘lakris’ and Madya was crying for help. When he forbade the accused from doing so, Ram Sahai threatened that let he (this witness) should also be finished so that he might not divulge about this to anyone in the village. He thereupon returned by his cycle towards the Naya Teela. On the following day in morning, he heard that Madya has been murdered. In his cross examination, he has stated that when he heard about the murder of Madya on the following morning, he was in his house. He after seeing the incident, came back to his house and went to sleep. He did not talk to anyone about the incident. SHO did not record his statement for about 8-10 days, but rather recorded his statement on 2nd and 3rd day. But when he was confronted with his police statement Ex.D6 and the discrepancy between what he stated to the police and now in the Court, he could not give any explanation. He did not talk to anyone about the incident. SHO did not record his statement for about 8-10 days, but rather recorded his statement on 2nd and 3rd day. But when he was confronted with his police statement Ex.D6 and the discrepancy between what he stated to the police and now in the Court, he could not give any explanation. Perusal of his statement u/s.161 Cr.P.C. (Ex.D6) clearly indicates that the same was recorded on 10th of August, 1989, a fact which has not been disputed by the Investigating Officer Mahendra Singh (PW24) himself. Thus Gopal despite an eye witness having seen an incident of this nature, would remain silent for as long as ten days and would not disclose about the incident to anyone either in the family or in the village, makes his conduct doubtful and his statement unreliable. He rather has clearly admitted in the last line of the cross examination that before he gave the statement to the SHO, he did not disclose the incident to anyone. This witness clearly, is not a witness of truth and, therefore, cannot be relied. 21. Let us now advert to the evidence on the point of motive. Sujya (PW2) has stated that about 15-20 days before the incident, an altercation took place between Madya on the one hand and Shri Lal and Ram Sahai on the other, who were alleging that Madya had stolen their buffaloes and threatened that they would spare and kill him. He intervened and separated them. Lakhma (PW3) and Gopi (PW4) also came there. They also asked both of them not to quarrel. The fact that in cross examination when he was required to explain as to why did he not state this to the police in his statement recorded u/s.161 Cr.P.C. (Ex.D1) that the accused threatened to kill Madya, does not make much of difference because when we peruse Ex.D1, it is stated therein that Shri Lal had a ‘karwadi’ and Ram Sahai had a ‘lathi’ and both attacked on Madya to kill him alleging that he had stolen their buffaloes. At that time, Lakhma and Gopi also reached there. All three of them intervened to save Madya. Shri Lal and Ram Sahai returned on their cycle after threatening Madya that they would see him in future. There is thus substantial similarity between the two statements. 22. At that time, Lakhma and Gopi also reached there. All three of them intervened to save Madya. Shri Lal and Ram Sahai returned on their cycle after threatening Madya that they would see him in future. There is thus substantial similarity between the two statements. 22. Lakhma (PW3) and Gopi (PW4) have also given substantially similar statements and rather proved the presence of each other. Jhumra (PW6) has stated that about 15 days before the death of Madya, Shri Lal and Ram Sahai came to his agriculture field on bicycles. They were saying that they doubted Madya and Badri of Jankipura that these people have stolen their buffaloes and that he (this witness) should help them to get their buffaloes back or else they would kill these people. Jhumra had stated that he advised them to call panchayat or if still their buffaloes was not returned, then report the matter to the police. Statement of these witnesses will give the background in which the accused has been murdered, but in the statement of all these four witnesses, name of Ram Avtar, the brother of accused-appellant Ram Sahai was missing though the name of Shri Lal, father of the accused-appellant Ram Sahai has been mentioned. It may also be noted that statement of all these witnesses viz. Sujya (PW2), Lakhma (PW3), Gopi (PW4) and Jhumra (PW6) under Section 161 Cr.P.C. were recorded on 1st August itself as has been proved by Investigating Officer Mahendra Singh (PW24). Even one of the statements Ex.D1 has been placed on record by the defence itself. 23. Coming now to the evidence of last seen, the statement of Sultan (PW5) in this respect is quite important. Sultan has stated that in an evening about three and half months ago, he along with his brother Madya, Chhotu, his brother-in-law Bheru and his cousin Rameshwar was at his home. Suddenly, Ram Sahai and Ram Avtar came to their home on two separate bicycles. They enquired about Madya. They had one ‘lathi’ each tied to carrier of their bicycle. Ram Sahai told Madya that Badri R/o Jankipura was calling him. Then Madya left the house saying to him that since Badri of Jankipura was calling him, he was going with Ram Sahai and Ram Avtar. Madya was pulling the bicycle and Ram Sahai was sitting at back on carrier with his ‘lathi’. Ram Sahai told Madya that Badri R/o Jankipura was calling him. Then Madya left the house saying to him that since Badri of Jankipura was calling him, he was going with Ram Sahai and Ram Avtar. Madya was pulling the bicycle and Ram Sahai was sitting at back on carrier with his ‘lathi’. Another bicycle was being pulled by Ram Avtar. Police statement of this witness (Ex.D2), which according to Mahendra Singh (PW24) and the said document itself was recorded on 1st August, 1989. There is some difference between what he has stated therein and the Court statement, but when in cross examination, he was asked whether he told the SHO that Madya left with Ram Sahai and Ram Avtar on their cycles, this witness has stated that he did tell him this and when asked that whether he gave in writing, this witness has stated that he did not give in writing, but he orally told the SHO about them. Presumably, in response to the next leading question as to when his statement was recorded by SHO, this witness has stated that he gave his statement on 2nd day when the SHO visited the village, but in response to next leading question, it has fallen from this witness that his statement was recorded on 3rd day from the date of death of Madya and, therefore, he did not give any complaint in writing. When he was again asked about the same, he stated that he did not give any written complaint within three days of death of Madya. 24. Chhotu (PW7) has also given statement exactly similar to that of Sultan that it was in the late evening when he along with Madya, Sultan and his brother-in-law Bhura was sitting in their house, Ram Sahai and Ram Avtar came on bicycles there and enquired about Madya. Madya then identified himself and then they went to some distance and started talking. They talked about half an hour then Madya told them that he was being called by Badri of Janakipura and that Ram Sahai and Ram Avtar had come for this purpose and therefore he was going with them. Thereafter, Madya accompanied them. Madya did not tell them whether he would return back on that very evening or the following day. They talked about half an hour then Madya told them that he was being called by Badri of Janakipura and that Ram Sahai and Ram Avtar had come for this purpose and therefore he was going with them. Thereafter, Madya accompanied them. Madya did not tell them whether he would return back on that very evening or the following day. In the next morning around 10.00 am, they heard in the village that a dead body was lying on the way leading to Deengra. About 30- 40 people went there. He also accompanied them. He identified the dead body to be that of his brother. In cross examination even what this witness has stated that it was correct that on the third day when the police personnel came to their village, he told them. Sultan also talked to the police personnel on the ‘chabutara’ outside their house. Not much can be made out of this part of statement of Chhotu, but a stray statement in cross examination by Sultan cannot be the reason to completely throw away his testimony, which otherwise is reliable. Lastly, not only the statement of these two witnesses, but also of so many witnesses was recorded by the Investigating Officer on 1.8.1989. The fact is that he had received the written report at 10.20 am on that day, which is evident from the proceedings drawn on the written report itself by SHO. The FIR was eventually registered on 7.30 pm on 1.8.1989. It is clear from record that the SHO Mahendra Singh, who himself was an Investigating Officer continued to stay at the place of incident, which was the place where the dead body was found or around that place and prepared memos/exhibits including inquest report (Ex.P2), site plan (Ex.P3), memo of inspection of dead body (Ex.P35), the seizure memo of clothes of the deceased (Ex.P15) and various other documents. 25. There are many other witnesses, who have proved the evidence of last seen. Bheru (PW8) has stated that he was on that day at his in-laws place in village Beejwad along with his brother-in- law Madya, Sultan, Chhotu and Rameshwar Khati. Ram Sahai and Ram Avtar came on motorcycles. Madya talked to them for quite sometime. Madya then left saying that Badri of Jankipura had called him. This witness then stated that he stayed in the house of his in-laws at Beejwad. Ram Sahai and Ram Avtar came on motorcycles. Madya talked to them for quite sometime. Madya then left saying that Badri of Jankipura had called him. This witness then stated that he stayed in the house of his in-laws at Beejwad. On the following morning, they found dead body of Madya on the way leading to Deengra. In cross examination, this witness has stated that Ram Sahai and Ram Avtar came around 7-8.00 pm. 26. Badrilal (PW9) is yet another significant witness of last seen, but this witness has named Ram Sahai and not Ram Avtar. He has stated that he runs a grocery shop in the village. He was at his shop at that time. It was around 5-5.30 pm, Ram Sahai came to his shop and purchased a bundle of ‘biri’ and match box. Gopal Meena was sitting there. Ram Sahai enquired about address of Madya. Thereafter, Gopal Meena accompanied him. They both left towards the house of Madya. On the following day, SHO came to his shop at 11-12 AM/noon and told him about a dead body found on the way leading to Deengra. He went there and identified the dead body to be that of Madya. In cross examination, this witness has stated that Gopal knew Ram Sahai from before and it was Gopal, who told his name to him. 27. Bhura (PW12) is yet another significant witness, who has proved the evidence of last seen. He has stated that it was in the evening of that day that he saw Madya and Ram Sahai. While Madya was pulling the bicycle, Ram Sahai was sitting at the back on carrier seat. Ram Sahai had a ‘lakri’ with him. When he enquired, they told that they were going for a work. On the following day, he heard about the murder of Madya. In cross examination, when he was confronted with his statement recorded u/s.161 Cr.P.C. (Ex.D7) as to why therein he did not name Ram Sahai as the person sitting at the back of bicycle, this witness has stated that he did not know the name of that person, but later he learnt from the police that he was Ram Sahai. But this witness has categorically stated that second accused by which he meant Ram Avtar, was not there. 28. But this witness has categorically stated that second accused by which he meant Ram Avtar, was not there. 28. Badri Meena (PW13) has stated that it was on that day around 2.00 pm when he was at his agriculture field that Ram Sahai son of Shri Lal came to their house. He had covered himself with a blanket. When he enquired as to why he was wearing blanket, he told that he was not feeling well. Then he (Ram Sahai) enquired from him as to whether Madya had come there. This witness told him that Madya did not come there. Ram Sahai then said that Madya had stolen his buffaloes and that he would kill him. Ram Sahai then went towards the village. Two days thereafter, Madya was found dead. 29. Rameshwar (PW16) has also stated that he had gone to the house of his maternal uncle Bheru (father of deceased). It was in the evening that Ram Avtar came there and called Madya. Then he took him (Madya) aside and talked to him for about half an hour. Madya told him that Ram Avtar was taking him to village Jhirana. Madya was pulling a cycle and Ram Avtar was sitting at back. Ram Sahai was on another cycle and he was carrying a ‘lathi’. On the following morning, they learnt that one person was lying dead on the way leading to Deengra. When they went there, they found dead body of Madya lying there. In cross examination, he has stated that Chhotu, Madya, Sultan and second Chhotu were sitting with him on the ‘chabutara’. Madya and Ram Avtar went about 8- 10 steps ahead them. Ram Sahai went after talking to Madya. Ram Avtar did not talk to them. 30. Kishan Lal (PW17) stated that he saw Madya and one person talking to each other. He did not know that person whom he saw in the house of Madya. 31. Not only the testimony of four witnesses namely; Sujya (PW2), Lakhma (PW3), Gopi (PW4) and Jhumra (PW6), who have been produced to prove the incident of 20 days before when Madya had come along with his father Shri Lal. They had altercation with Madya alleging that latter had stolen their buffaloes and that they left threatening him of dire consequences, but they do not show presence of Ram Avtar with any of them. They had altercation with Madya alleging that latter had stolen their buffaloes and that they left threatening him of dire consequences, but they do not show presence of Ram Avtar with any of them. Statements of witnesses of last seen is also consistent with regard to presence of Ram Sahai. Sultan (PW5) has stated that Madya was pulling bicycle with Ram Sahai sitting at the back side with a ‘lathi’. He was confronted with his police statement (Ex.D2) where he told that Ram Sahai and Ram Avtar had come on cycles to take Madya to Badri of Janakpuri and that Madya was pulling the bicycle and Ram Sahai was sitting with a ‘lakri’ on the back seat. This witness has stated that while Ram Sahai had ‘lakri’ in his hands, ‘lakris’ were also tied with the carrier of the cycles of both Ram Sahai and Ram Avtar. 32. Jhumra (PW6) has also stated that it was Ram Sahai, who had come to him with his father Shri Lal on his agriculture field and asked him (this witness) to help recover his buffaloes, which he said was stolen by Madya and Badri of Jankipura. Their also name of only Ram Sahai has been stated. Bheru (PW8) though named both Ram Avtar and Ram Sahai, but said that Ram Sahai was separately talking to Madya and that when they left, Madya was sitting on the cycle of Ram Sahai. Badrilal (PW9) has also stated that Ram Sahai alone came to his shop to enquire about the house of Madya. At that time, Gopal Meena was sitting on his shop. Then they both left towards house of Madya. In cross examination, this witness has clarified that though he did not know Ram Sahai from before, but Gopal Meena told him that his name was Ram Sahai. Bhura Meena (PW12) has also in his Court statement stated that he saw only Ram Sahai sitting on the back seat of the cycle, which was being pulled by deceased Madya. Badri (PW13) has also stated that Ram Sahai came to him to enquire about Madya. He told that Madya had not come. Thereupon, Ram Sahai told that Madya had stolen his buffaloes and that he would kill him. Ram Sahai then left towards the village. 33. Rameshwar (PW16) however has named both Ram Avtar and Ram Sahai and stated that both came on separate cycles. He told that Madya had not come. Thereupon, Ram Sahai told that Madya had stolen his buffaloes and that he would kill him. Ram Sahai then left towards the village. 33. Rameshwar (PW16) however has named both Ram Avtar and Ram Sahai and stated that both came on separate cycles. However, Kishan Lal Gujar (PW17) though turned hostile, but has stated that he had seen only one person with deceased Madya, who were talking to each other in the house of the deceased, but he did not know, who the person was. 34. The Supreme Court in the cite case of Rameshbhai Mohanbhai Koli, supra was dealing with a case where the eye witnesses cited by the prosecution turned hostile presumably due to influence and pressure of the accused, which included a sitting MLA of ruling party, but observed that the witnesses may lie, but circumstances do not. The Court noted that there was recovery of weapon of offence (knives) at the instance of appellants from the place exclusively known to them and the surgical report proved that knives contained blood group “O”, which was that of the deceased and that the blood of the same group was found on the seat of the motorcycle and also on the loan application form bearing the name and address of one of the accused from the seen of occurrence. Even if the attesting witnesses turned hostile, the Investigating Officer has proved all these memos and therefore the conviction was upheld. 35. In the present case, apart from the evidence of last seen and the motive, there is also recovery of one ‘lathi’ each from the accused-appellants and the recovery of ‘dhoti’ at the instance of accused-appellant Ram Sahai and the shirt at the instance of Ram Avtar. The recovery memos of ‘lathi’ Ex.P21 and Ex.P22 indicate that no blood stains were found therein, therefore, they were not sent to FSL, but the arrest memo of Ram Sahai (Ex.P43) clearly indicate that the clothes that he was wearing at the time of arrest were immediately taken off and separately seized vide memo Ex.P45 owing to the fact that there were two blood spots visible on the ‘dhoti’. The arrest memo and the seizure memo of the ‘dhoti’ were simultaneously prepared, which becomes evident from the fact that the time 8.30 am on 8.8.1989 has been indicated in both of them. The arrest memo and the seizure memo of the ‘dhoti’ were simultaneously prepared, which becomes evident from the fact that the time 8.30 am on 8.8.1989 has been indicated in both of them. For Ram Avtar also, the position is similar that his arrest memo (Ex.P44) was prepared at 8.35 pm on 8.8.1989 and the recovery memo of his shirt (Ex.P46) was also prepared at 8.35 pm on 8.8.1989. Mere non-mention of the fact that blood stains were found on the said clothes in the arrest memo would not be therefore fatal because both the memos were simultaneously prepared. However, since the evidence of prosecution witnesses is more focused on Ram Sahai than against Ram Avtar, the chain of circumstances is complete qua Ram Sahai without leaving any missing links, but the evidence against Ram Avtar is not so complete and leaves many missing links in the chain of circumstances. Therefore, the possibility that the shirt that was recovered also could be of Ram Sahai could not be ruled out, but nonetheless, it would be evident that blood stains were found on his clothes and also on the clothes of the deceased as would be evident as per the FSL report (Ex.P50 and Ex.P51). Ramniwas, SHO Police Station Diggi, who was SHO on 22.2.1982 has proved that the accused Ram Sahai was absconding in several cases and when the police party went to arrest him, he and his family members put a lot of resistance to his arrest inasmuch they attacked the police party. The FIR (Ex.P17) was registered for offence under Sections 224, 225, 353, 332 and 308 IPC against Ram Sahai and his family members. Also has been placed on record (Ex.P18), the FIR dated 15.9.1982 lodged by one Amba Lal S/o Sheokaran Jat on allegation of eve teasing his daughter-in-law Galku by Ram Sahai. These documents proves the criminal nature of accused Ram Sahai. 36. We are not inclined to countenance the alternative argument of learned senior counsel that the present case would fall in exception (4) to Section 300 of IPC as there is no evidence to substantiate that the incident had taken place in a sudden fight at a spur of moment in a heat of passion and further that the accused has not taken any undue advantage of the situation. There are as many as four injuries caused to the deceased and as per Dr. Narendra Choudhary (PW19), three of these injuries proved to be fatal, except one injury, which was caused by blunt weapon. Injury no.1 resulted into fracture of tibia and fibula bone of left leg. Injury no.2 resulted in fracture of radias and ulna bone of the left hand and injury no.4 resulted in fracture of humerus bone of right hand. As per the postmortem report, proved by this witness, the cause of death was due to excessive hemorrhage and shock as a result of multiple injuries. The fractures of hands and legs of the deceased were so severe that the bones were completely broken. The first injury as per the postmortem was lacerated wound with compound fracture in the size of 3cm x 1cm x bone deep. Tibia and fibula bone of left leg completely broken 14 cm below of left knee joint. Injury no.2 was lacerated wound with compound fracture in the size of 3cm x 1cm x bone deep on dorsum of left forearm 17 cm blow elbow joint, as a result of which radius and ulna bones were completely broken at the site of injury. Injury no.4 was also lacerated wound with compound fracture in the size of 2cm x 1cm x bone deep resulting into fracture of humerus bone, completely broken 4 cm above right elbow joint lower 1/3rd portion of right arm. Though death was brought about due to cumulative effect of these injuries, but these three being major injuries had major role to play in the immediate excessive blood loss, which resulted into hemorrhagic shock leading to death of deceased. 37. In view of above discussion, the accused-appellant Ram Avtar has made out a case of benefit of doubt. However, no case is made out for interference in the impugned judgment with regard to the conviction and sentence of accused-appellant Ram Sahai. 38. In the result, the appeal of Ram Sahai is dismissed. However, the appeal of Ram Avtar is allowed and his conviction and consequential sentence is set aside. The impugned judgment is accordingly modified. The sentence of accused-appellant Ram Avtar and Ram Sahai has already been suspended by this Court vide order dated 18.09.1991. The bail bonds of Ram Avtar are therefore discharged, he is not required to surrender and is set at liberty forthwith. The impugned judgment is accordingly modified. The sentence of accused-appellant Ram Avtar and Ram Sahai has already been suspended by this Court vide order dated 18.09.1991. The bail bonds of Ram Avtar are therefore discharged, he is not required to surrender and is set at liberty forthwith. Accused-appellant Ram Sahai has remained in jail for 2 years, 1 month and 10 days, he is therefore directed to surrender immediately before the trial court, which will take him into custody and send him to jail to serve out the remaining sentence of imprisonment. In case, the aforesaid accused-appellant Ram Sahai does not surrender within one month from the date of receipt of copy of this judgment and order, the trial court shall take necessary steps to take him into custody and send him to jail to serve out the remaining sentence of imprisonment.