ORDER : 1. Heard Shri Mohd. Shahid Akhtar, learned Amicus Curiae for appellant No. 4-Suresh Mandal and learned A.G.A. for the State. 2. This criminal appeal has been filed by the appellants namely Sardari Lal Gulati, Narendra Nath Gulati, Rajendra Nath Gulati and Suresh Mandal against the judgment and order dated 05.06.1982 passed by learned Vllth Additional Sessions Judge, Lucknow in Sessions Trial No. 513 of 1981 "State vs. Sardari Lal Gulati and others", arising out of Case Crime No. 467 of 1979, under Sections 323, 307 and 302 I.P.C., Police Station Alambagh, District Lucknow, whereby appellant Narendra Nath Gulati has been convicted under Section 302, 324/34 and 323 of I.P.C. and sentenced for life imprisonment, 03 years and 01 year respectively. Appellants Sardari Lal Gulati, Rajendra Nath Gulati and Suresh Mandal have been convicted under Section 326/34, 324/34 and 323/34 of I.P.C. and have been sentenced for 05 years, 03 years and 01 year rigorous imprisonment, respectively. 3. Appellant Nos. 1, 2 and 3, namely Sardari Lal Gulati, Narendra Nath Gulati and Rajendra Nath Gulati, have died during the pendency of this appeal and the appeal with regard to them has been abated vide order dated 19.01.2019 of this Court. Now, this appeal survives only with regard to appellant No. 4 namely Suresh Mandal. All efforts have been made by this Court to procure the attendance of appellant No. 4-Suresh Mandal, but his whereabouts were not traced and in the facts and circumstances of the case, vide order dated 24.09.2019, this Court appointed Shri Mohd. Shahid Akhtar as Amicus Curiae for appellant No. 4-Suresh Mandal. 4. Brief facts necessary for the disposal of this appeal are that informant Shri Ram Das came to the Police Station Alambagh, Lucknow on 13.10.1979 at about 9:45 pm. and informed that he is posted as a Stenographer in Census Office and is living on rent in House No. 1, Blunt Square, Lucknow, landlord of which is Shri S.L. Gulati. He further informed that Shri Gulati (Landlord) wants to evict him from his tenanted accommodation and is building pressure on him to vacate the house. He did not vacate the house on the pretext that he will vacate the same as and when he will get another suitable accommodation. Today, he along with his friend had gone in the city and when he returned at about 9:00 pm. He did not vacate the house on the pretext that he will vacate the same as and when he will get another suitable accommodation. Today, he along with his friend had gone in the city and when he returned at about 9:00 pm. in the night, he saw that Shri S.L. Gulati, his two sons (Rajendra Nath Gulati and Narendra Nath Gulati) as well as their servant (Suresh Mandal) were throwing his household material out of his residence. When he attempted to prevent them from doing this mischief, they assaulted him and his cousin brother Mahavir Sachan with knives. On an alarm raised by them, his brother Ram Bilas and ladies of the house came to his rescue, but they were also assaulted by the accused persons with fists and kicks. Shri Vyas, Sarju Prasad and many other persons of the 'Mohalla' came there and saved them from accused persons, till then he had sustained injuries on his stomach, chest as well as on his head. His cousin has also sustained injuries on his chest and is in a critical condition. 5. On the basis of the above mentioned oral information, an FIR at Case Crime No. 467/1979, under Section 307 of I.P.C. was registered against all accused/appellants and the investigation of the case was entrusted to Sub Inspector Shri Ghireo Singh. As the injured Ram Das and Mahavir were available on Police Station Alambagh, the injuries of these two persons were noted at the police station and they were taken to the Balrampur Hospital, Lucknow for the treatment and examination and management of their injuries. 6. The injuries of both these injured persons namely Ram Das and Mahavir Sachan were medically examined in the Balrampur Hospital, Lucknow and both of them were admitted in the emergency ward of the hospital, where Mahavir succumbed to the injuries on 14.10.1979 at about 5:00 am. While at the Balrampur Hospital, injured Ram Das was examined by Doctor Sudhir Kumar (P.W. 3) on 13.10.1979 at 10:30 pm. and following injuries were found on his person; Injury No. 1/Lacerated wound 1 cm. x 0.5 cm. x bone deep on the forehead 7 cm. above left eye brow. Injury No. 2/Incised wound 2 cm. x 1 cm. x depth unprobed on the chest 13.5 cm. below left nipple at 6 O' clock position. Injury No. 3/Incised wound 2.5 cm. x 1 cm. x 0.5 cm. x bone deep on the forehead 7 cm. above left eye brow. Injury No. 2/Incised wound 2 cm. x 1 cm. x depth unprobed on the chest 13.5 cm. below left nipple at 6 O' clock position. Injury No. 3/Incised wound 2.5 cm. x 1 cm. x depth unprobed 3 cm. below right nipple in about 7 O' clock position. Injury No. 4/Lacerated wound 1.5 cm. x 0.25 cm. x muscle deep over lower lip near left angle. According to the doctor the injury No. 1 and 4 were simple and were caused by some blunt object while injury No. 2 and 3 were kept under observation and were caused by some sharp edged weapon. Injuries were fresh at the time of examination. The injured was admitted in the hospital. Doctor Sudhir Kumar, who has testified as P.W. 3 has also proved injury report Exhibit-ka-4, in his handwriting and signature. So far as injured Mahavir is concerned, his injuries were also examined by the above mentioned Doctor Sudhir Kumar on 13.10.7979 at 10:45 pm., who reported the injuries as under:- Injury No. 1/Incised wound 2.5 cm. x 1 cm. x depth unprobed 5 cm. from the right nipple at about 2:30 O' clock position. Injury No. 2/Abrasion 3 cm. x 1 cm. on the forehead left half about in middle. Injury No. 1 was kept under observation and injury No. 2 was simple. The injury No. 1 was caused by some sharp edged weapon while injury No. 2 was caused by friction against hard object. He has proved injury report as Exhibit-ka-5. The injured was admitted in the hospital. According to him, injury No. 2 and 3 of Ram Das and injury No. 1 of Mahavir could have been caused by knife on 13.10.1979 at about 9:00 pm. Injuries of Ram Das which were kept under observation were found to be simple vide supplementary medical report Exhibit-ka-5. The doctor had also proved the bed head tickets of Ram Das and Mahavir who were admitted in the Emergency Ward of the hospital in the night of 13.10.1979. These injured persons were given treatment by Dr. N.S. Chauhan. According to the examination report of Doctor Chauhan, the condition of Mahavir remained critical and he was semiconscious and was operated upon at about 3:00 am. and ultimately died in the hospital at 5:00 am. These injured persons were given treatment by Dr. N.S. Chauhan. According to the examination report of Doctor Chauhan, the condition of Mahavir remained critical and he was semiconscious and was operated upon at about 3:00 am. and ultimately died in the hospital at 5:00 am. The above mentioned Doctor Sudhir Kumar had also examined appellant Sardarli Lal Gulati on 13.10.1979 at 11:55 pm. and found following injuries on his person:- Injury No. 1/Contusion 2 cm. x 1 cm. over tip of nose. Old clotted blood was found present in both nostrils. Shirt was soiled in blood. Injury No. 2/Complained of pain in right shoulder but no mark of injury was seen. The Investigating Officer of the case took over the investigation and went to the Balrampur Hospital, Lucknow in the intervening night of 13/14.10.1979 and recorded the statements of Ram Das and Mahavir, who were admitted there. He then visited the scene of occurrence, but could not find anyone at the house of Ram Das and arrested appellant Suresh Mandal. The other two appellants S.L. Gulati and Narendra Nath Gulati by that time, had already been detained in the police station, Alambagh. He seized the blood stained 'shirt and kurta' of S.L. Gulati and Narendra Nath Gulati and prepared a memo, Exhibit-ka-10. After the death of injured Mahavir Sachan in the Balrampur Hospital, Lucknow, S.L. Shri B.P. Pandey prepared the inquest (Panchnama) of the body of deceased Mahavir, and after preparation of necessary papers for the purpose of postmortem, the dead body was sent to the mortuary for postmortem examination. The postmortem on the dead body of Mahavir was performed by P.W. 6/Dr. K.K. Srivastava on 14.10.1979 at about 3:30 pm. at the Mortuary of Balrampur Hospital, Lucknow. The deceased was found to be a person of average built, rigor mortis was present in upper and lower body. Postmortem staining was present on the back. Eyes were closed, while the mouth was half open. Hospital dressing was found on the right ankle with 02 stitches present. Hospital dressing was also found on the left ankle with one stitch. Hospital surgical wound present over right side of chest 5.0 cm. x 0.2 cm. with 05 stitches with dwelling rubber cather, 12.5 cms. below right axilla. Following ante mortem injuries were found on the body of the deceased:- Injury No. 1/Multiple abraded contusion in area of 4 cms. Hospital dressing was also found on the left ankle with one stitch. Hospital surgical wound present over right side of chest 5.0 cm. x 0.2 cm. with 05 stitches with dwelling rubber cather, 12.5 cms. below right axilla. Following ante mortem injuries were found on the body of the deceased:- Injury No. 1/Multiple abraded contusion in area of 4 cms. x 2.5 cms over left forehead 2.5 cms. above eye-brow. Injury No. 2/One stitched incised wound, on removing the stitch 2 cm. x 0.5 cm. x chest cavity deep over right side of front of chest, 5.5 cms medial of right nipple, 9.5 cms. below inner end of clavicle. On opening sternum was found cut 2.0 cm. x 0.5 cm. under injury No. 2. Lung in right upper lobe and incised wound 1.8 cm. x 0.5 cm. found present, under injury No. 2. One liter fluid, clotted blood was found present in thoracic cavity. Injury No. 1 was caused by hard and rough object and Injury No. 2 was caused by sharp edged weapon. Plura under Injury No. 2 on right side was also found cut, fluid of grayish colored about 02 ounce was found present in the stomach. Semi-digested food material was found in the small intestine, whereas faecal matter and gases were found in the large intestine. Liver was found weighing about 1180 gms. Gall Bladder was found half full. The Urinary Bladder was found empty and the cause of death of the deceased was death due to shock and hemorrhage. Injured Ram Bilas was also medically examined on 15.10.1979 at about 12:15 pm. who was brought by Constable Ashok Kumar of Police Station Alambagh, Lucknow and following injuries were found on his person:- Injury No. 1/Contusion 6 cm. x 1 cm. on the left side of chest, 2 cms. below & medial to left nipple. Injury No. 2/Traumatic swelling 2 cm. x 2 cm. on the back of left thumb. Both injuries were found simple and duration was about 2 days old and they were caused by blunt object. Smt. Ram Dulari was also medically examined on 15.10.1979 at 12:25 pm. who was also brought by Constable Ashok Kumar of P.S. Alambagh, Lucknow and following injury was found on her person:- Injury No. 1/Complaint of pain on left hand and back of left shoulder, but no external marks of injuries are seen. Smt. Ram Dulari was also medically examined on 15.10.1979 at 12:25 pm. who was also brought by Constable Ashok Kumar of P.S. Alambagh, Lucknow and following injury was found on her person:- Injury No. 1/Complaint of pain on left hand and back of left shoulder, but no external marks of injuries are seen. No opinion was stated to be possible by the Doctor. Smt. Manju was also medically examined on 15.10.1979 at 12:10 pm., who was also brought by the above mentioned police constable and she also complained of pain in back and right upper arm and as per the Doctor, no external marks of injuries were seen, hence, it was recorded that no opinion is possible. 7. The Investigating Officer after completion of the investigation, including the preparation of Site Plan (Exhibit-ka-11) submitted the charge-sheet, Exhibit-ka-12 against all appellants under Section 302, 307, 323 I.P.C. 8. The case being exclusively triable by the Court of Sessions was committed to the Sessions Court and charges under Sections 302/34, 307/34 and 323/34 were framed against all appellants. The appellants denied the charges and pleaded not guilty and claimed trial. 9. The case being exclusively triable by the Court of Sessions was committed to the Sessions Court and charges under Sections 302/34, 307/34 and 323/34 were framed against all appellants. The appellants denied the charges and pleaded not guilty and claimed trial. 9. The prosecution in order to bring home the guilt of the accused-appellants relied on following documents:- Chick F.I.R.-Exhibit-ka-23, Memo pertaining to seizure of clothes found on deceased Mahavir-Exhibit-ka-2, Memo of clothes found on Shri Ram Das-Exhibit-ka-3, Injury report of Ram Das, Exhibit-ka-3, Supplementary medical report pertaining to injured Ram Das, Exhibit-ka-5, Injury report of Ram Bilas son of Kalika Prasad, Exhibit-ka-7, Injury report of Ram Dulari wife of Shri Kalika Prasad, Exhibit-ka-8, Injury report of Smt. Manju wife of Shri Kailash Narayan, Exhibit-ka-9, Seizure memo pertaining to the clothes of appellants Sardari Lal Gulati and Narendra Nath Gulati, Exhibit-ka-10, Site Plan, Exhibit-ka-11, Charge-sheet, Exhibit-ka-12, statement of deceased Mahavir recorded by the Investigating Officer under Section 161 of the Cr.P.C., Exhibit-ka-13, Postmortem report of deceased Mahavir, Exhibit-ka-17, Inquest report of deceased, Exhibit-ka-18, letter to C.M.O., Exhibit-ka-19, Chitthi R.I., Exhibit-ka-20, Photo lash, Exhibit-ka-21, Police proforma No. 13, Exhibit-ka-22, Entry of G.D. dated 13.10.1979 at 21:45 hours, Exhibit-ka-24, G.D. Entry dated 14.10.1979 at 10:30 hours pertaining to the death of deceased, Exhibit-ka-25, F.I.R. lodged by appellant Sardari Lal Gulati on 13.10.1979 at 22:40 hours, Exhibit-Kha-1, G.D. entry dated 13.10.1979 at 22:40 hours, with regard to above F.I.R., Exhibit-Kha-2, Injury report of Shri Sardari Lal Gulati, Exhibit-Kha-3, Copy of written information by S.L. Gulati dated 13.10.1979, Exhibit-Kha-4, G.D. Entry No. -32 dated 13.10.1979 at 17:35 hours with regard to the departure of Constable Dhirendra Pratap Singh, Exhibit-Kha-5, G.D. Entry No. 34 time 14:30 hours dated 13.10.1979, pertaining to the arrival of above mentioned Constable Dhirendra Pratap Singh, Exhibit-Kha-6, Forensic report of chemical analyst paper No. A-6/1 dated 14.01.1980, Forensic report of chemical analyst paper No. A-6/2 dated 27.02.1981. 10. In addition to the above documents, the prosecution also relied on following witnesses:- 1. P.W. 1/Shri Ram Das, (Injured/eye witness) 2. P.W. 2/Ram Bilas (Injured/eye witness) 3. P.W. 3/Dr. Sudhir Kumar, (Doctor who examined the injuries of injured persons). 4. P.W. 4/Dr. Pratap Singh, (Doctor who examined injured Rambilas, Ramdulari and Smt. Manju). 5. P.W. 5/Shri Ghireo Singh (Investigating Officer), 6. P.W. 6/Dr. K.K. Srivastava, who conducted the postmortem., 7. P.W. 7/Dr. N.S. Chauhan, (who attended injured Ram Das and Mahavir). 11. P.W. 3/Dr. Sudhir Kumar, (Doctor who examined the injuries of injured persons). 4. P.W. 4/Dr. Pratap Singh, (Doctor who examined injured Rambilas, Ramdulari and Smt. Manju). 5. P.W. 5/Shri Ghireo Singh (Investigating Officer), 6. P.W. 6/Dr. K.K. Srivastava, who conducted the postmortem., 7. P.W. 7/Dr. N.S. Chauhan, (who attended injured Ram Das and Mahavir). 11. After the completion of the prosecution evidence, the statement of the accused persons/appellants was recorded under Section 313 of the Cr.P.C., wherein appellant S.L. Gulati stated to be the owner of the disputed house. According to him, the first floor of his house was rented to one Asthana and the top floor was rented to injured Ram Das. He denied the evidence produced by the prosecution and stated that the statement of deceased Mahavir recorded under Section 161 of the Cr.P.C. is concocted and fabricated. In addition to the statement, he filed a detailed written statement, wherein he has stated that he was a Senior Accounts Officer in Railways and after retirement purchased this house and is living in the same. His eldest son is Deputy Chief Commercial Superintendent in Railways and other son Narendra Nath Gulati is Production Manager in the Government Cement Factory and both his sons live out of town in connection with their service. He has rented his house to Ram Das as well as the first floor to Asthana. On 10.10.1979, Asthana vacated his part of tenanted accommodation, on which Ram Das and his family members illegally occupied the Kitchen portion vacated by Asthana. On 13.10.1979, they came to know of such illegal possession and at 11:00 am. when Ram Bilas met him, he complained to him about the mischief and also as to how they have broken open the kitchen. Ram Bilas hit him with a stick, he complained the matter to the police station and two constables came there and reprimanded Ram Bilas and others. He further stated that on the same day at 9:00 pm. in the night, when he was lying on the bed, Ram Das, Mahavir along with 03 unknown persons came inside his bedroom and started shouting and abusing him. Ram Das gave him a blow on his nose, which resulted in profused bleeding from his nose. The group of his blood is 'AB'. in the night, when he was lying on the bed, Ram Das, Mahavir along with 03 unknown persons came inside his bedroom and started shouting and abusing him. Ram Das gave him a blow on his nose, which resulted in profused bleeding from his nose. The group of his blood is 'AB'. His sons Rajendra Nath Gulati and Narendra Nath Gulati were also present as the operation of the eyes of his wife was scheduled. They took him to the police station, where he lodged the report and was arrested by the police in the police station. When he came out of the Jail on bail he came to know that after inflicting injuries on him, at the fateful night, when Ram Das and his other companions were running, servants of his sons, who were present outside caught them and a scuffle occurred in between them. Since his sons are Class I Government Officers, they have been falsely implicated for the purpose of harassment. Appellant, Narendra Nath Gulati in his statement denied the evidence produced by the prosecution and filed a detailed written statement, wherein he has stated that he is a Government Servant posted at the Cement Factory at District Mirzapur. He occasionally came to meet his parents. He came to Lucknow on 12.10.1979 at about 9:00 pm. and on 13.10.1979, he spent the entire day in the inspection of Cement Plant at Dala, Mirzapur and came back to his house at about 8:00 pm. The incident had happened in the manner stated by his father namely S.L. Gulati. After the occurrence, he went with his father to Police Station Alambagh to lodge the First Information Report and that he has been falsely implicated only for the purpose of harassment. Appellant, Rajendra Nath Gulati in his statement recorded under Section 313 of the Cr.P.C. has denied the evidence of the prosecution and also filed a detailed written statement stating that he is posted as Deputy Chief Commercial Superintendent. He came to his parental house from Gauhati on 13.10.1979 at 6:30 pm. as he wanted to took his mother for the operation of 'Cataract'. He came to know at about 2:00 am. in the night that his father and younger brother Narendra has been arrested by the police for the offence under Section 307 of I.P.C. He went to the house of his cousin. as he wanted to took his mother for the operation of 'Cataract'. He came to know at about 2:00 am. in the night that his father and younger brother Narendra has been arrested by the police for the offence under Section 307 of I.P.C. He went to the house of his cousin. He returned from there at about 5:00 pm. in the evening and saw that his mother and Bhabhi are in his house, who informed him that their servant Suresh Mandal has also been arrested by the police, and the whereabouts of his other servants and his brother are not known. It is further stated by him that he was suffering from high fever and was also having serious medical ailments and was not in a position to commit the alleged offence. Appellant No. 4/Suresh Mandal also denied the prosecution evidence and has stated that he informed S.L. Gulati about the illegal possession of the Kitchen made by Ram Das, which was vacated by the tenant Asthana and he had been roped in on the basis of enmity, as he was instrumental in reporting the illegal possession of Ram Das to his master S.L. Gulati, who in turn called the police and the police personnel arrived at the spot and scolded them. Appellants also produced in their favour a defense witness namely D.W. 1/Shri Priyabhusan Vyas. 12. The trial Court after analyzing the evidence available on record came to the conclusion that the prosecution has been able to prove its case beyond reasonable doubt only to the extent that there was no common intention on the part of the accused persons to commit murder of Mahavir and the common intention of the appellants was only to eject Ram Das and his family members from the kitchen illegally occupied by Ram Das and have thereby caused injuries in order to achieve this object and found Narendra Nath Gulati guilty of the offence under Section 302 of I.P.C., while appellant S.L. Gulati was found guilty of the offence under Section 326, 324 and 323 read with Section 34 of I.P.C. and appellant Rajendra Nath Gulati and Suresh Mandal were also found guilty of the offence under Section 326, 324, 323 read with Section 34 of the I.P.C. All appellants were punished and sentenced, as stated in Paragraph 2 of this Judgment. 13. 13. Aggrieved by the impugned judgment and order of the trial Court, all appellants have challenged the same by filing this appeal. 14. As stated earlier, appellants No. 1, 2 and 3 namely Sardari Lal Gulati, Narendra Nath Gulati and Rajendra Nath Gulati have died during the pendency of this appeal and the appeal with regard to them has been abated, vide order dated 19.01.2019 and this appeal only survives with regard to appellant No. 4-Suresh Mandal. He is also absconding and when all measures to procure his attendance were exhausted, Shri Mohd. Shahid Akhtar has been appointed as Amicus Curiae for him. 15. Shri Mohd. Shahid Akhtar, learned Amicus Curiae while referring to the judgment of the trial Court submits that the trial Court has materially erred in accepting the unreliable testimony of the prosecution witnesses, in the background of the fact that it was evident on record that the informant and his companions entered the bedroom of S.L. Gulati and assaulted him and and it was after the departure of S.L. Gulati from the place of occurrence that the servants of his sons had a scuffle with Ram Das and Mahavir, wherein Mahavir or Ram Das might have sustained some injuries, but no injury has been caused to either Mahavir or Ram Das or to any other person by the surviving appellant-Suresh Mandal. He further submits that it is an admitted case of the prosecution that the surviving appellant Suresh Mandal was a servant of S.L. Gulati, therefore, there was no occasion for the servant of house to share the common intention of all other appellants either to cause grievous hurt or to cause murder of either Ram Das or Mahavir. It is overwhelmingly submitted by learned Amicus Curiae that the appellant has been falsely implicated in this case, as he was the person, who brought the fact of illegal possession of kitchen by Ram Das, which was vacated by another tenant Asthana in the knowledge of Shri S.L. Gulati who in turn called the police and police constables came at the scene and reprimanded Ram Das and his family members, therefore, the name of appellant, who is a servant of the house has only been dragged in this case due to this enmity. He further submits that in the FIR or in the statement of the witnesses, no specific role of assault has been assigned to the surviving appellant. There are material contradictions, embellishments and inherent weaknesses in the story of the prosecution and the prosecution evidence is so weak that on the basis of which the conviction of the appellant could not have been done. Therefore, the trial Court has materially erred, so far as appreciation of evidence is concerned, in convicting appellant Suresh. It is next submitted that appellant is a poor fellow not having any role in the incident and has been the subject of criminal trial for the last 30 years and, therefore, he is liable to be acquitted of all the charges levelled against him. 16. Learned A.G.A., while supporting the judgment of the trial Court submits that the trial Court has rightly appreciated the evidence available on record and has validly came to the conclusion that the surviving appellant namely Suresh Mandal was sharing a common intention of to cause grievous injury and also to dispossess Ram Das and his family from the kitchen illegally occupied by him, therefore, there is no illegality in the judgment and order of the trial Court. It is further submitted that the statement of the injured Mahavir was recorded by the Investigating Officer under Section 161 of the Cr.P.C. in the night of the incident at District Balrampur Hospital, Lucknow in which Mahavir, (who at that point of time was alive), supported the contention of the First Information Report and is admissible as dying declaration and, therefore, the evidence available on record is so strong that the parameters of proof beyond reasonable doubt has been easily achieved and the appellant has rightly been convicted by the trial Court. It is further submitted that the story of assault by Ram Das or Ram Bilas or Sardari Lal Gulati at 9:00 pm. has been rightly rejected by the trial Court, as the appellant failed to prove that they were assaulted by the informant' side on 13.10.1979 at 9:00 pm. Therefore, there appears to be no illegality or even irregularity in the decision of the trial Court convicting the appellants including Suresh Mandal for committing the offence under Section 326/34, 324/34, 323/34, therefore, the appeal preferred by the appellant is liable to be dismissed. 17. Therefore, there appears to be no illegality or even irregularity in the decision of the trial Court convicting the appellants including Suresh Mandal for committing the offence under Section 326/34, 324/34, 323/34, therefore, the appeal preferred by the appellant is liable to be dismissed. 17. A brief survey of the testimony of prosecution witnesses would help in appreciating the evidence of prosecution in the background of submission of learned counsel for the parties. P.W. 1/Shri Ram Das in his statement recorded before the Court below has stated that he was a tenant of appellant Sardari Lal Gulati and was residing at the upper portion of his house. On 13.10.1979 at about 9:00 pm when he returned from outside, he found that all 04 appellants, in an attempt to illegally evict him were throwing their household material from their rented accommodation. He objected and told them as to how they can get the rented accommodation vacated in such a manner. The appellants replied that if they will not vacate the house, they will be evicted from this world and Sardari Lal Gulati and Narendra Nath Gulati took out knives. Rajendra Nath Gulati caught hold of him while Suresh Mandal caught hold of Mahavir Sachan, who was a relative of him and at that day had come to their house. When he tried to get rid of S.L. Gulati, he assaulted him on his chest with the knife, while Narendra Nath Gulati stabbed Mahavir Sachan, who was caught hold by appellant Suresh Mandal. Rajendra Nath pushed him which resulted in his head being hit against a pole and he fell down. It is further stated by him that on an alarm raised by them, Sarju Prasad, Priya Bhusan Vyas and son of Sarju Prasad i.e. Virendra Kumar came at the seen and asked the appellants that why despite being educated they are doing such type of acts, on which the appellants left them. It is also stated that when Ram Bilas and ladies of his house attempted to save them, they were also assaulted by the appellants by fists and kicks, whereby he, the wife of his younger brother and his mother sustained injuries. It is also stated that when Ram Bilas and ladies of his house attempted to save them, they were also assaulted by the appellants by fists and kicks, whereby he, the wife of his younger brother and his mother sustained injuries. They were taken by Rickshaw to the police station, where the FIR was lodged and from police station, they were referred to Balrampur Hospital, where their injuries were examined and they both were admitted, however, at about 5:00 in the morning, Mahavir Sachan died in the hospital. P.W. 2/Ram Bilas in his statement has stated about the fact of him being the tenant of appellant Sardari Lal Gulati and also that at 9:00 pm. when he, Mahavir and his Bhabhi were in their rented accommodation, appellants S.L. Gulati, Narendra Nath, Rajendra Nath and Suresh Mandal came to a room situated towards 'dallan' of their house and evicted all of them from that room. Ram Das came from outside at the relevant time when the appellants were putting their household luggage out of that room. His brother asked the appellants as to why they were doing this and he tried to enter the room, however, Rajendra Nath caught hold of him from behind, at the same moment Mahavir also asked them as to what were they doing, but he was caught by appellant Suresh Mandal. Sardari Lal Gulati and Narendra Nath Gulati then took out knives and stabbed Ram Das and Mahavir with the knives, which they were carrying. This witness also stated that on the alarm raised by them, Priyabhusan Vyas, Sarju Prasad and Virendra Kumar came to the scene of crime and asked appellant not to assault them, but till then the appellants had already assaulted them with knives. When he and other family members attempted to save Mahavir and Ram Das, appellant Rajendra Nath and Suresh Mandal started beating them. They went to the police station in a rickshaw. He went to the hospital and also brought the clothes of Mahavir and Ram Das and submitted the same in the police station. A 'fard', pertaining to these clothes were also prepared as Exhibit-ka-2 & 3. Mahavir, however, died in the morning in the hospital. P.W. 3/Dr. Sudhir Kumar has stated that on 13.10.1979, he was posted as Balrampur Hospital, Lucknow as Medical Officer and at 10:30 pm. A 'fard', pertaining to these clothes were also prepared as Exhibit-ka-2 & 3. Mahavir, however, died in the morning in the hospital. P.W. 3/Dr. Sudhir Kumar has stated that on 13.10.1979, he was posted as Balrampur Hospital, Lucknow as Medical Officer and at 10:30 pm. in the night, he examined injured Ram Das & Mahavir, who were brought by Constable Ashok Kumar. He proved the injury report of Ram Das as Exhibit-ka-4 and his supplementary report as Exhibit-ka-5 as well as the injury report of Mahavir as Exhibit-ka-6. He also proved to have examined the appellant Sardari Lal Gulati on 13.10.1979 at 11:55 pm. and proved the injury report, pertaining to him as Exhibit-kha-3. The details of all above injury reports have been given in detail at Para No. 6 of this judgment. P.W. 4/Dr. Pratap Singh, who examined Ram Bilas, Smt. Ram Dulari and Smt. Manju on 15.10.1979 at about 12:15 pm., 12:25 pm. and 12:10 pm., respectively has stated that he examined the injuries sustained by these injured persons and also prepared injury reports, Exhibit-ka-7, Exhibit-ka-8 & Exhibit-ka-9 in his writing and signatures. P.W. 5/Shri Ghireo Singh, who is the Investigating Officer of the case, stated that on 14.10.1979 at 00:05 hours, he started the investigation by copying the FIR and the G.D. in the Case Diary. He recorded the statements of Ram Das and Mahavir Sachan in the Balrampur Hospital and then went to the place of occurrence, but could not find anyone at the house of Ram Das. He arrested the appellant Suresh Mandal and recorded the statement of S.L. Gulati and Narendra Nath Gulati, who were also detained at the police station from before. He got the injury reports of Ram Das and Mahavir, took into possession the blood stained clothes of S.L. Gulati and Narendra Nath Gulati and also prepared a memo, Exhibit-ka-10 on 15.10.1979 and also recorded the statements of the witnesses of Inquest. He further stated that Ram Bilas deposited the blood stained clothes of Mahavir and Ram Das at the police station, which he took into possession. He also stated to have recorded the statement of Ram Dulari and Smt. Manju and also to have sent them to hospital for medical examination. He further stated that Ram Bilas deposited the blood stained clothes of Mahavir and Ram Das at the police station, which he took into possession. He also stated to have recorded the statement of Ram Dulari and Smt. Manju and also to have sent them to hospital for medical examination. He went with Ram Bilas to the place of occurrence and recorded the statements of witness Vyasji, Sarju Prasad and Virendra Kumar and after inspecting the scene of occurrence, prepared Site Plan, Exhibit-ka-11. He also stated to have recorded the statement of witness Peeru on 18.10.1979 and after recording the statement of the scribe of the FIR and also after obtaining the postmortem report and connected papers submitted a charge-sheet after completion of the investigation against all appellants under Sections 302, 307 and 323 of I.P.C. It is further stated by him that he while recording the statement of deceased Mahavir under Section 161 of the Cr.P.C. he had noted what Mahavir Sachan had stated before him. He proved the copy of the statement of Mahavir Sachan recorded by him, under Section 161 of the Cr.P.C. as Exhibit-ka-13. This witness also proved the Inquest Report, Exhibit-ka-18 prepared by Sub-Inspector Shri R.D. Pandey and the other necessary papers prepared by S.L. Pandey for the postmortem of the deceased Mahavir. He also proved the FIR, Exhibit-ka-23 and copy of G.D., Exhibit-ka-24 and also the G.D. Report, Exhibit-ka-25, whereby the case was altered under Section 302 of I.P.C. on account of the death of deceased Mahavir. P.W. 6/Dr. K.K. Srivastava, has stated that on 14.10.1979 at 3:30 pm., he conducted postmortem on the body of the deceased Mahavir and prepared postmortem report in his hand writing and signatures and proved the same as Exhibit-ka-17. He stated that the injury No. 2 of deceased could have been caused by knife and was sufficient in the ordinary course of nature to cause his death. The detailed description of the contents of the postmortem report has been elaborately discussed at Para No. 6 of this judgment. P.W. 7/Dr. N.S. Chauhan, who was posted as Medical Officer at Balrampur Hospital on 14.10.1979 stated that on 14.10.1979 at 12:30 am. he examined Ram Das and provided him proper treatment. He also examined Mahavir Sachan and provided him proper treatment in Emergency Ward. Mahavir was also examined by Dr. Sudhir Kumar and was admitted at 3:00 am. P.W. 7/Dr. N.S. Chauhan, who was posted as Medical Officer at Balrampur Hospital on 14.10.1979 stated that on 14.10.1979 at 12:30 am. he examined Ram Das and provided him proper treatment. He also examined Mahavir Sachan and provided him proper treatment in Emergency Ward. Mahavir was also examined by Dr. Sudhir Kumar and was admitted at 3:00 am. on the same day. After getting reports, Mahavir was operated and also that the chest injury sustained by Mahavir was sufficient in the ordinary course of nature to cause his death. He proved the bed head ticket of Mahavir as Exhibit-ka-15-A and has further stated that on 14.10.1979 at 5:00 am. in the morning, Mahavir had died. Appellants after getting their statement recorded under Section 313 of the Cr.P.C. produced D.W. 1/Shri Priyabhusan Vyas as defence witness. This witness stated that the place of occurrence is adjacent to his house and plinth level of his house, is 3½ fit higher than the plinth of S.L. Gulati's house and the house of Sardari Lal is visible from inside his house. He further stated that Ram Das was a tenant at the upper most portion of the house of S.L. Gulati, while one Asthana was tenant at the first floor situated above the garage and he vacated this portion about 02 days before the incident. He further stated that Mahavir was a regular visitor at Ram Das house, as he was either a relative or having family terms with Ram Das. According to him on 13.10.1979 at 9:00 pm., when he was in his house and came out to lock his front door, he saw that the night bulb of the Gulati's bed room was alighted and some noise was coming out from there. He went up stairs and saw that Ram Das, Mahavir and 3-4 other unknown persons were present in the bed room of Gulati and he felt that some scuffle was going on in the room. Thereafter, Ram Das, Mahavir and 3-4 other unknown persons came out of the room in the Gallery and there they had some scuffle with the servants of Sardari Lal Gulati and his sons. He further stated that on the day of occurrence, both the sons of S.L. Gulati were present at his home as the operation of the wife of S.L. Gulati was scheduled next day. He further stated that on the day of occurrence, both the sons of S.L. Gulati were present at his home as the operation of the wife of S.L. Gulati was scheduled next day. Appellants also produced S.L. Ghireo Singh in their defence, who proved various police papers pertaining to an information given on 13.10.1979 by Sardari Lal Gulati about the illegal possession of kitchen made by Ram Das and has also proved the G.D., whereby the two constables were sent to the house of Sardari Lal Gulati. The G.D. entries show that S.L. Gulati sustained some injury on his nose during scuffle. 18. We have carefully perused the evidence on record. Certain facts in this case are admitted to the parties. This is an admitted case of the parties that appellant Sardari Lal Gulati was the owner of House No. 1 situated at Blunt Square, Alambagh, Lucknow. There were two portions built in that house, one each at the first and second floor, which were rented to tenant Asthana and informant Ram Das respectively. It is also an admitted fact that Asthana vacated his rented accommodation on 10.10.1979 and Sardari Lal Gulati took possession of his portion except the kitchen. The kitchen of the premises which was in the possession of Sri Asthana was situated in a tin shed, which falls in front of the rooms occupied by informant Ram Das. Sardari Lal Gulati was an old retired Government Servant and his sons Rajendra Nath Gulati and Narendra Nath Gulati were Class-1 Officers and they were in employment at Gauhati and at Mirzapur, respectively. It is also admitted to the parties that on the day of occurrence, both sons of Sardari Lal Gulati were present in Lucknow for the reason that the operation of the eyes of their mother was scheduled next day. Instant appellant-Suresh Mandal was the servant of Sardari Lal Gulati and he was also present in the house at the time of the incident. It is also an admitted case of parties that some incident had occurred on 13.10.1979 at 9:00 pm. Instant appellant-Suresh Mandal was the servant of Sardari Lal Gulati and he was also present in the house at the time of the incident. It is also an admitted case of parties that some incident had occurred on 13.10.1979 at 9:00 pm. The version of the prosecution is that all accused-appellants went to the rented portion of the house occupied by Ram Das and started throwing his household goods and when they were challenged by Mahavir and Ram Das, appellant Rajendra Nath Gulati caught hold of Ram Das, while Suresh Mandal caught hold of Mahavir and appellant Sardari Lal Gulati stabbed Ram Das on chest and Narendra Nath Gulati stabbed Mahavir in the stomach, with the knives they were carrying. When Ram Bilas and other 02 women of the house namely Ram Dulari and Manju tried to intervene, they were also assaulted by all appellants. 19. The defence version, however, is that family of Ram Das had taken forcible possession of the kitchen vacated by Asthana on 10.10.1979 and on 13.10.1979 at about 11:00 am., Sardari Lal Gulati asked Ram Bilas, as to by whose permission they had taken possession of kitchen, on which Ram Bilas assaulted him. Sardari Lal Gulati reported this matter to the police and 02 constables came from Police Station Alambagh and reprimanded Ram Bilas and others. Sardari Lal Gulati also handed over a written report to the two constables who arrived at the spot on his complaint. It is also the case of defence that the Ram Bilas and his family members were annoyed on account of scolding of the two constables of P.S. Alambagh, Lucknow and on the same day at about 9:00 pm., they, accompanied by Mahavir, went inside the room of Sardari Lal Gulati and Ram Das shouted on Sardari Lal Gulati and gave a fist blow on his nose, which resulted in profused bleeding. It was also alleged that when they were returning they inflicted some injuries on themselves with an intention to falsely implicate Sardari Lal Gulati and his two sons. 20. It was also alleged that when they were returning they inflicted some injuries on themselves with an intention to falsely implicate Sardari Lal Gulati and his two sons. 20. The above mentioned facts, derived from the evidence on record clearly reflect that the parties became inimical towards each other when Asthana vacated rented accommodation of Sardari Lal Gulati's house on 10.10.1979 and the kitchen, which was earlier in the possession of Asthana and was situated in front of the rooms occupied by Ram Bilas, was illegally occupied by Ram Bilas. It is also evident that a written complaint was sent to the police station by Sardari Lal Gulati, through 02 constables arrived at the spot on 13.10.1979 in the afternoon, wherein it is stated that Ram Bilas has assaulted him and illegally occupied the kitchen, vacated by tenant Asthana. Therefore, it is proved by the evidence on record that incident at 9:00 pm. on 13.10.1979 occurred when Sardari Lal Gulati and his two sons attempted to get the possession of the kitchen which was illegally occupied by Ram Bilas. It is also established by the injuries sustained by the ladies of the Ram Bilas's house i.e. Ram Dulari and Manju, that the incident had actually occurred in or around the rooms occupied by Ram Bilas and the kitchen, which was vacated by Asthana. 21. The evidence on record further reveals that occurrence on 13.10.1979 had taken place at about 9:00 pm. and the FIR of the occurrence was lodged by Ram Das on the same day at 9:45 pm. In the facts and circumstances of the case, the First Information Report is prompt and leaves no room for presuming any concoction or fabrication of the incident. So far as the non presence of blood at the place of occurrence is concerned, the same has been explained by the Investigating Officer (P.W. 5/Shri Ghireo Singh), when he stated that he attempted twice to inspect the spot, but could not succeed as no member of the Ram Das's family was available and despite efforts, he could only make inspection of the site after 02 days of the occurrence and by that time, the appellants had washed the blood. 22. The Investigating Officer of the case namely Shri Ghirao Singh (P.W. 5) has also stated to have recorded the statement of the deceased under Section 161 of the Cr.P.C., while he was injured. 22. The Investigating Officer of the case namely Shri Ghirao Singh (P.W. 5) has also stated to have recorded the statement of the deceased under Section 161 of the Cr.P.C., while he was injured. A copy of that statement has also been exhibited as Exhibit-ka-13. There cannot be any other proposition, then, that the statement of the deceased recorded by the Investigating Officer under Section 161 of the Cr.P.C., if it discloses the cause of his death will be governed by the Provision of Section 32 of the Indian Evidence Act and the same is admissible as dying declaration. In this background, reference may be had to the judgment in the case of Mukeshbhai Gopalbhai Barot vs. State of Gujarat and Bhagwan vs. State of U.P. (06.12.2012 - SC) : wherein Hon'ble supreme Court has held as under;- "21. As far as the implication of 162(2) of Code of Criminal Procedure is concerned, as a proposition of law, unlike the excepted circumstances under which 161 statement could be relied upon, as rightly contended by learned senior Counsel for the Respondent, once the said statement though recorded Under Section 161 Code of Criminal Procedure assumes the character of dying declaration falling within the four corners of Section 32(1) of Evidence Act, then whatever credence that would apply to a declaration governed by Section 32(1) should automatically deemed to apply in all force to such a statement though was once recorded Under Section 161 Code of Criminal Procedure. The above statement of law would result in a position that a purported recorded statement Under Section 161 of a victim having regard to the subsequent event of the death of the person making the statement who was a victim would enable the prosecuting authority to rely upon the said statement having regard to the nature and content of the said statement as one of dying declaration as deeming it and falling Under Section 32(1) of Evidence Act and thereby commend all the credence that would be applicable to a dying declaration recorded and claimed as such." In Laxman vs. State of Maharashtra, Hon'ble supreme Court was pleased to hold as under;- "3. The justice theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or promoting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise." 23. In the instant case, the Doctors namely P.W.3 Dr. Sudhir kumar and PW-7 Dr. N.S. Chauhan, who were attending the injured Mahavir have categorically stated that the condition of deceased Mahavir was critical and he was semi conscious and he was operated at 03.00 a.m.. P.W-3 Dr. Sudhir kumar has further stated that if any patient is serious they do not allow anyone to meet him. PW-7 Dr. N.S. Chauhan has also stated that the condition of the Mahavir was very serious and he was not in a position to give any statement and he has endorsed it on his bed head ticket. His condition further deteriorated after 03.00 a.m. and he was unconscious and was not in a fit condition to make any statement. Investigating Officer Shri Ghirao Singh (P.W. 5) has also admitted in his statement that he did not note the time of recording of statement of Mahavir and that he did not talk to any Doctor pertaining to the health of Mahavir and he remained at the hospital till 03.00 a.m.. Investigating Officer Shri Ghirao Singh (P.W. 5) has also admitted in his statement that he did not note the time of recording of statement of Mahavir and that he did not talk to any Doctor pertaining to the health of Mahavir and he remained at the hospital till 03.00 a.m.. He stated that he can not recall as to in which Ward Mahavir was admitted. He also did not meet with any person of the family of Mahavir in the hospital. However no explanation has been given by the Investigating Officer as to how he recorded the statement of injured without taking permission or consent of the Doctors who were attending the injured Mahavir or of any other authority of the hospital. Therefore, in the facts and circumstances of the case we are of the considered view that the dying declaration alleged to have recorded by the Investigating Officer could not be relied. But apart from the Dying Declaration of the deceased there is ample evidence on record in the shape of testimony of two injured persons namely Ram Das (P.W. 1) and Ram Bilas (P.W. 2), who have given trustworthy account of the incident and their evidence appears to be reliable, trustworthy and acceptable in the facts and circumstances of the case. 24. Though, the independent witnesses mentioned in the FIR namely Vyas Ji, Sarju Prasad and Virendra have not been examined by the prosecution but their non-examination, in the facts and circumstances of the case, is not detrimental to the prosecution on two scores. At first, the accused persons have admitted in their defence that some incident actually took place at 9:00 pm. on 13.10.1979, wherein Sardari Lal Gulati was allegedly injured and Mahavir and Ram Das inflicted injuries on their persons, which, in the facts and circumstances of the case, has not been found true, as the injuries on the person of Ram Das and Mahavir were of such a nature, which could not be self-inflicted. Secondly, Ram Das (P.W. 1) and Ram Bilas (P.W. 2) are injured witnesses of the incident and their presence on the spot is natural and has also been proved as such. The medical evidence also suggests that injuries found on the persons of all injured including deceased might have been caused on the date and time, as suggested by the prosecution. The medical evidence also suggests that injuries found on the persons of all injured including deceased might have been caused on the date and time, as suggested by the prosecution. In our considered opinion, the evidence of the prosecution witnesses i.e. P.W. 1/Ram Das and P.W. 2/Ram Bilas, who are also injured witnesses, is trustworthy and reliable. Non-examination of any other independent witness mentioned in the First Information Report, in our considered opinion, does not affect the case of the prosecution adversely and would not be a ground to discard the reliable testimony of prosecution eye witnesses Ram Das and Ram Bilas, more so when they are injured witnesses, we may usefully refer to the following observations made by the Supreme Court in the case of Dalip Singh vs. State of Punjab reported as where the proposition of law has been laid down as under:- "A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely, Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts." In Appabhai and Ors. vs. State of Gujarat, Hon'ble Supreme Court has held as under:- "Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused." In Sachchey Lal Tiwari v. State of U.P. AIR 2004 SC 5039 , while dealing with the case Hon'ble Supreme Court has held as under:- "7....Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere 'chance witnesses'. The expression 'chance witness' is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence." 14. In view of the above, it can safely be held that natural witnesses may not be labelled as interested witnesses. Interested witnesses are those who want to derive some benefit out of the litigation/case. In case the circumstances reveal that a witness was present on the scene of the occurrence and had witnessed the crime, his deposition cannot be discarded merely on the ground of being closely related to the victim/deceased." 25. Further, minor contradictions/improvements in the statement of the witnesses in our opinion, are not so material as to dilute the entire prosecution case. It is trite that contradictions in matters of detail cannot be a ground to disbelieve the witness once his testimony stands corroborated in material particulars. In the case of State (Delhi Administration) and Ors. vs. Laxman Kumar and Ors. It is trite that contradictions in matters of detail cannot be a ground to disbelieve the witness once his testimony stands corroborated in material particulars. In the case of State (Delhi Administration) and Ors. vs. Laxman Kumar and Ors. Reported in, on the aspect of contradictions in the deposition of witnesses, Hon'ble Supreme Court has observed that It is common human experience that different persons admittedly seeing an event, give varying accounts of the same. That is because the perceptiveness varies and a recount of the same incident is usually at variance to a considerable extent. Ordinarily, if several persons give the same account of an event, even with reference to minor details, the evidence is branded as parrot like and is considered to be the outcome of tutoring. Hon'ble Apex Court long back in the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat as reported in AIR 1983, 753, laid down the following principles:- (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed an the mental screen. (2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. (3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another. (4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. (5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guesswork on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. (7) A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him - perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment." Hon'ble Apex Court in Vadivelu Thevar V/s. state of Madras; AIR 1957 SC 614 has held as under:- "The contention that in a murder case, the Court should insist upon plurality of witnesses, is much broadly stated." "The Indian Legislature has not insisted on laying down any such exceptions to the general Rule recognized in Section 134 quoted above. The Section has enshrines the well recognized maxim that "Evidence has to be weighed and not counted." Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. "Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution." "Generally speaking oral testimony in this context may be classified into three categories, namely (1) wholly reliable (2) wholly unreliable (3) neither wholly reliable nor wholly unreliable. In the first category of proof, the Court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The Court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony." Vadivelu Thevar case (supra) was referred to with approval in many cases thereafter and it was held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. This is what the essence of Section 134 of the Indian Evidence Act, 1872 is. But, if there are doubts and suspicion about the testimony of such a witness the courts will insist on corroboration. Therefore, it is not the number and the quantity, but the quality which is material. The time tested principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth around it, is cogent, credible and trustworthy, or otherwise. It has also been held by courts that identical testimonies without any contradictions, can in fact be suspected. In Shivaji Sahabrao Bobade vs. State of Maharashtra reported as : , it has been held as under:- "19. The test is whether the evidence has a ring of truth around it, is cogent, credible and trustworthy, or otherwise. It has also been held by courts that identical testimonies without any contradictions, can in fact be suspected. In Shivaji Sahabrao Bobade vs. State of Maharashtra reported as : , it has been held as under:- "19. We must observe that even if a witness is not reliable, he need not be false and even if the Police have trumped up one witness or two or has embroidered the story to give a credible look to their case that cannot defeat justice if there is clear and unimpeachable evidence making out the guilt of the accused. Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." 26. Having carefully appreciated the whole evidence of the prosecution witnesses, we are of the considered opinion that in the instant case, the defence has not been able to shake the testimony of the witnesses in their cross-examination and the said testimony stands duly corroborated in all material particulars, so far as the assault given by appellants to Mahabir, Ram das, Ram Bilas, Ram Dulari and Manju is concerned. Therefore, it is evident and proved by reliable evidence that on 13.10.1979 at 9:00 pm. the incident happened at the portion of the house of Sardari Lal Gulati wherein Ram Das was the tenant and Mahavir, Ram Das, Ram Bilas, Ram Dulari and Manju were got injured in the incident. It is also proved by the reliable and trustworthy evidence of injured witnesses that deceased Mahavir was assaulted by knife by appellant Narender Nath Gulati while Ram Das was assaulted by knife by sardari Lal Gulati. It is also pertinent to mention here that Sardari Lal Gulati and his both sons have died and the appeal in their respect has been abated and the appeal only survives in respect of Suresh Mandal. 27. Now, it has to be analysed, keeping in view the evidence of the prosecution available on record, as to what role has been played by the surviving appellant Suresh Mandal in the commission of the crime. 27. Now, it has to be analysed, keeping in view the evidence of the prosecution available on record, as to what role has been played by the surviving appellant Suresh Mandal in the commission of the crime. The main intention of the appellants appears to be to evict the Ram Das from the kitchen, which was vacated by tenant Asthana and was illegally occupied by Ram Das. It is proved and also an admitted fact that appellant Suresh Mandal was a servant of Sardari Lal Gulati and his presence at the spot at the time of incident is quite natural. Therefore, on the basis of his mere presence at the house, where he is employed he could not be associated with sharing the common intention of Sardari Lal Gulati and his sons. The Investigating Officer has also not found any household material allegedly thrown by the appellant Suresh Mandal or other co-appellants in the 'Sahan', as has been stated by them in the FIR and in statements and also no household object was produced, which might have got damaged during the process of throwing of such luggage or material. 28. The explanation put forth by the prosecution that the household items thrown by accused-appellant/Suresh Mandal were again placed inside the tin shade by the informant's side, could not be accepted as it was an important piece of evidence and also on the score that no person from the side of the informant was found on the spot for two days despite the visits of the Investigating Officer twice and due to non-availability of any person from the side of informant for two days the site plan could be prepared after two days of the occurrence. Therefore, what transpires from the evidence on record is that the incident which happened on 13.10.1979 at 9:00 pm. in front of the kitchen vacated by Asthana was with regard to the illegal occupation of kitchen by Ram Bilas and no household items, etc. were thrown by the appellant namely Suresh Mandal. 29. It has also been proved by the evidence on record that appellant Sardari Lal Gulati and Narendra Nath Gulati were carrying knives with them, whereby they inflicted injuries on Ram Das and Mahavir. The role of catching hold of Ram Das has been assigned to Rajendra Nath Gulati and of catching hold of Mahavir has been attributed to Suresh Mandal (Surviving appellant). The role of catching hold of Ram Das has been assigned to Rajendra Nath Gulati and of catching hold of Mahavir has been attributed to Suresh Mandal (Surviving appellant). Ram Bilas and two other women namely Ram Dulari and Manju were also stated to be assaulted by all the appellants. The trial Court after appreciating the evidence on record came to a conclusion that the main intention of the appellant was to get that portion of the house vacated, which was illegally occupied by Ram Bilas and Ram Das, and for this purpose appellants had gone upstairs and there was no common intention on the part of the appellants to murder Mahabir. Having carefully perused the evidence of the prosecution witnesses in totality, we concur with the finding of the trial Court that keeping in view the facts and circumstances of the case, there was no common intention of the appellants, namely, Sardari Lal Gulati, Narendra Nath Gulati and Rajendra Nath Gulati to kill deceased Mahabir or any other person but was only to get the kitchen vacated, which was illegally occupied by Ram Das. We, however, find ourselves unable to accept the proposition that a petty servant of the house namely Suresh Mandal (Surviving Appellant) was also privy to this common intention. It is evident that since morning of 13th October, 1979, when Sardari Lal Gulati came to know about the illegal possession made by the Ram Das of the kitchen vacated by Asthana, some tussle was going on in between the informant's side and appellants. In the afternoon of the same day Ram Das had allegedly assaulted Sardari Lal Gulati and, therefore, keeping a knife with them, in the background of the incident which had happened in the afternoon, will not necessarily involve Suresh Mandal as a part of any common design to which Sardari Lal Gulati and his 02 sons i.e. Narendra Nath Gulati and Rajendra Nath Gulti might have agreed to. Nothing has come in the evidence of prosecution witnesses which may suggest that Sardari Lal Gulati or narender Nath Gulati were carrying the knife openly in their hands or the carrying of knives by them was in the knowledge of their servant i.e. Suresh Mandal (Appellant). 30. Nothing has come in the evidence of prosecution witnesses which may suggest that Sardari Lal Gulati or narender Nath Gulati were carrying the knife openly in their hands or the carrying of knives by them was in the knowledge of their servant i.e. Suresh Mandal (Appellant). 30. The trial Court has rightly held that there was no common intention of all appellants to kill Mahavir and it was only accused-appellant/Narendra Nath Gulati who stabbed Mahavir and the intention to cause death of deceased Mahavir could only be attributed to Narendra Nath Gulati, as the injury found on the person of Mahaveer was sufficient in the ordinary course of nature to cause his death. This is also evident from the evidence on record that Sardari Lal Gulati was an old person and was alleged to have given 02 knife blows to Ram Das on his chest. In the supplementary report, these 02 injuries caused by knife have been found to be simple in nature. The trial Court found that Sardari Lal Gulati was having a common intention to cause grievous and simple injuries. It is also proved on record that Sardari Lal Gulati was carrying a knife with him at the time of incident and he also used it in commission of the crime. Therefore keeping in view the totality of facts and evidence on record we also concur with this view of the trial Court. However, in the next breath, learned trial Court has opined that there could have been a common intention on the part of all accused persons to cause grievous hurt to Mahavir and simple injuries to Ram Dulari, Manju and Ram Bilas and thereby convicted the appellants, Rajendra Nath Gulati and Suresh Mandal also under Section 326/34, 324/34 and 323/34 of I.P.C. In Ramesh Singh @ Photi vs. State Of A.P. reported in: (2004) 11 SCC 305 , Hon'ble Supreme Court has opined as under:- "Section 34 IPC embodies the principles of joint liability in doing the criminal act based on a common intention. Common intention essentially being a state of mind it is very difficult to procure direct evidence to prove such intention. Therefore, in most cases it has to be inferred from the act like, the conduct of the accused or other relevant circumstances of the case. Common intention essentially being a state of mind it is very difficult to procure direct evidence to prove such intention. Therefore, in most cases it has to be inferred from the act like, the conduct of the accused or other relevant circumstances of the case. The inference can be gathered by the manner in which the accused arrived at the scene, mounted the attack, determination and concert with which the attack was made, from the nature of injury caused by one or some of them. The contributory acts of the persons who are not responsible for the injury can further be inferred from the subsequent conduct after the attack. In this regard even an illegal omission on the part of such accused can indicate the sharing of common intention. In other words, the totality of circumstances must be taken into consideration in arriving at the conclusion whether the accused had the common intention to commit an offence of which they could be convicted." In the case Nand Kishore v. State of Madhya Pradesh reported in (2011) 12 SCC 120 ), Hon'ble Supreme Court discussed the ambit and scope of Section 34 of Indian Penal Code as well as its applicability as under: "20. A bare reading of this section shows that the section could be dissected as follows: (a) Criminal act is done by several persons; (b) Such act is done in furtherance of the common intention of all; and (c) Each of such persons is liable for that act in the same manner as if it were done by him alone. In other words, these three ingredients would guide the court is determining whether an accused is liable to be convicted with the aid of Section 34. While first two are the acts which are attributable and have to be proved as actions of the accused, the third is the consequence. Once the criminal act and common intention are proved, then by fiction of law, criminal liability of having done that act by each person individually would arise. The criminal act, according to Section 34 Indian Penal Code must be done by several persons. The emphasis in this part of the section is on the word "done". It only flows from this that before a person can be convicted by following the provisions of Section 34, that person must have done something along with other persons. The criminal act, according to Section 34 Indian Penal Code must be done by several persons. The emphasis in this part of the section is on the word "done". It only flows from this that before a person can be convicted by following the provisions of Section 34, that person must have done something along with other persons. Some individual participation in the commission of the criminal act would be the requirement. Every individual member of the entire group charged with the aid of Section 34 must, therefore, be a participant in the joint act which is the result of their combined activity. 21. Under Section 34, every individual offender is associated with the criminal act which constitutes the offence both physically as well as mentally i.e. he is a participant not only in what has been described as a common act but also what is termed as the common intention and, therefore, in both these respects his individual role is put into serious jeopardy although this individual role might be a part of a common scheme in which others have also joined him and played a role that is similar or different. But referring to the common intention, it needs to be clarified that the courts must keep in mind the fine distinction between "common intention" on the one hand and "mens rea" as understood in criminal jurisprudence on the other. Common intention is not alike or identical to mens rea. The latter may be coincidental with or collateral to the former but they are distinct and different. 22. Section 34 also deals with constructive criminal liability. It provides that where a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. If the common intention leads to the commission of the criminal offence charged, each one of the persons sharing the common intention is constructively liable for the criminal act done by one of them." It is also pertinent to mention here the case of Ezajhussain Sabdarhussain vs. State Of Gujrat reported in 2019 (2) JIC 33 (SC) wherein Hon'ble Supreme Court has Opined as under:- "14. ..............Common intention denotes action in concert and necessarily postulates the existence of a prearranged plan and that must mean a prior meeting of minds. ..............Common intention denotes action in concert and necessarily postulates the existence of a prearranged plan and that must mean a prior meeting of minds. It would be noticed that cases to which Section 34 can be applied disclose an element of participation in action on the part of all the accused persons. The acts may be different; may vary in their character, but they are all actuated by the same common intention. It is now well settled that the common intention required by Section 34 is different from the same intention or similar intention. As has been observed by the Privy Council in Mahbub Shah v. King Emperor, I.L.R. (1945) IndAp 148 common intention within the meaning of Section 34 implies a pre arranged plan, and to convict the accused of an offence applying the Section it should be proved that the criminal act was done in concert pursuant to the pre arranged plan and that the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case. 15. The essence of the joint liability during the criminal act in furtherance of such common intention has been discussed by a two-Judge Bench of this Court in Ramashish Yadav and Others(supra) wherein it was held as under: "... .Section 34 lays down a principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The distinct feature of Section 34 is the element of participation in action. The common intention implies acting in concert, existence of a prearranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. It requires a prearranged plan and it presupposes prior concert. Therefore, there must be prior meeting of minds. The prior concert or meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. It can also be developed at the spur of the moment but there must be prearrangement or premeditated concert." 31. The prior concert or meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. It can also be developed at the spur of the moment but there must be prearrangement or premeditated concert." 31. Having gone through the entire prosecution evidence in depth in the background of above legal position, we are unable to concur with the opinion of learned trial Court pertaining to the conviction of Rajendra Nath Gulati and Suresh Mandal, under Section 326/34 and 324/34, respectively. When the trial Court after appreciating the evidence had recorded a categorical and clear finding that there was no common intention amongst appellants to murder Mahavir and also that Narendra Nath Gulati was having an isolated and independent intention to kill Mahabir with which he assaulted him and Sardari Lal Gulati who was carrying knife could only have intended to cause grievous injuries with knives to Mahavir and Ram Das, there was no occasion for learned trial Court to convict appellant Rajendra Nath Gulati and Suresh Mandal for committing the offence under Section 326/34 and 324/34 of I.P.C. in absence of any common design, as these two appellants were not carrying any arm with them. 32. The case of the prosecution from the institution of the First Information Report is that Ram Bilas was caught by Rajendra Nath Gulati and 02 blows of knife were given to him by Sardari Lal Gulati. Similarly, Mahavir was caught by Suresh Mandal and Narendra Nath Gulati stabbed him. As said earlier, we are in agreement with the finding of trial Court and it is otherwise emerges out of the evidence of prosecution on record that there was no common intention of appellants to murder Mahavir and Narendra Nath Gulati's act of stabbing Mahavir was his own and isolated act. It is also proved that only Sardari Lal Gulati and Narendra Nath Gulati were having knives with them. Therefore, the finding of the trial Court may be correct pertaining to these two appellants i.e. Sardari Lal Gulati and Narendra Nath Gulati of having an common intention of causing grievous injuries to Mahavir or Ram Das. It is also proved that only Sardari Lal Gulati and Narendra Nath Gulati were having knives with them. Therefore, the finding of the trial Court may be correct pertaining to these two appellants i.e. Sardari Lal Gulati and Narendra Nath Gulati of having an common intention of causing grievous injuries to Mahavir or Ram Das. But the existence of any common intention amongst the appellants to murder Mahavir has been disbelieved by the trial Court and when there is no other evidence on record, which may suggest as to how Suresh Mandal (Surviving appellant) and Rajendra Nath Gulati may have a common intention to cause grievous hurt in absence of any dangerous weapon or even any kind of weapon possessed by them. Since Rajendra Nath Gulati and Suresh Mandal were admittedly not carrying any kind of arm with them and only general allegations of assaulting by fists and kicks have been levelled against all accused persons, at the most these two appellants could be convicted for the offence under Section 323 of I.P.C., as no overt act, except catching hold, has been assigned to them and there was no common intention on the part of appellants to murder any person. Therefore, in our considered opinion the trial Court has committed a manifest error in appreciating the evidence on record and in arriving at a conclusion that appellant Suresh Mandal and Narendra Nath Gulati were sharing common intention to cause grievous injury and have committed offence under Section 326/34 and 323/34. 33. In view of above discussion, we are of considered opinion that it was a case, where there was no common intention of all the accused persons to commit the offence and appellants have not acted in furtherance of any common intention when there is no common design or intention, each appellant is liable personally for the act committed by him. We are also of the considered view that there was no common intention on the part of appellant Suresh Mandal to cause grievous hurt and he could only be convicted for his independent act. The evidence available on record prove that appellant Suresh Mandal had caused simple injuries to Ram Bilas, Ram Dulari and Manju. Their injuries are supported and corroborated by the medical evidence on record. Therefore appellant Suresh Mandal is liable to be convicted only under section 323 of the IPC. The evidence available on record prove that appellant Suresh Mandal had caused simple injuries to Ram Bilas, Ram Dulari and Manju. Their injuries are supported and corroborated by the medical evidence on record. Therefore appellant Suresh Mandal is liable to be convicted only under section 323 of the IPC. In view of this, conviction of appellant Suresh Mandal under Sections 326/34 and 324/34 can not be sustained. 34. In view of above, the appeal filed by appellant Suresh Mandal is liable to be partly allowed and his conviction under Section 324/34 and 326/34 is liable to be set-aside. 35. Resultantly, the appeal filed by Suresh Mandal is partly allowed and he is acquitted of the charges under Section 326/34 and 324/34 of I.P.C. However, the judgment and order of the trial Court dated 05.06.1982, with regard to the conviction of appellant Suresh Mandal only for commission of offence under Section 323/34 I.P.C. along with sentence of 01 year rigorous imprisonment is affirmed. 36. Appellant Suresh Mandal would also get benefit of Section 428 of the Cr.P.C. in calculation of period of his imprisonment and his detention in this case shall be adjusted against the sentence. He is absconding. The trial Court would thus call a report from the prison pertaining to the period spent by Suresh Mandal in prison in this case and if it is found that he has not undergone sentence of one year, as directed by trial Court and affirmed by this Court for committing offence under Section 323 IPC, a permanent non bailable warrant shall be issued against him and he will be arrested and be lodged in jail to serve out the remaining sentence, if required. 37. Before parting with the case, we record our appreciation for the sincere assistance provided by Shri Shahid Akhtar Advocate who represented the appellant as Amicus Curie. He will get Rs. 10000 as his fee. 38. Appeal with regard to appellant Sardari Lal Gulati, Narendra Nath Gulati and Rajendra Nath Gulati has already abated vide order of this Court dated 19.01.2019 on account of their death, during pendency of this appeal. A copy of this judgment along with record be immediately sent to the trial Court for information and compliance.