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2019 DIGILAW 309 (JHR)

Bhadar Lohar v. State of Bihar (now Jharkhand)

2019-01-30

APARESH KUMAR SINGH

body2019
JUDGMENT : 1. Heard learned Senior Counsel for the appellant and learned Additional Public Prosecutor on behalf of the State. 2. Under the impugned judgment dated 09.05.1996 passed in Sessions Trial No. 168 of 1993 by learned 2nd Additional Sessions Judge, Jamshedpur, seven accused persons were convicted for the charges under Section 302/149 of the Indian Penal Code. Accused Bhadar Lohar, Chhotababu Lohar and Ganesh Lohar were found guilty of rioting armed with deadly weapons and additionally convicted under Section 148 of the Indian Penal Code and rest four accused persons namely Vijay Lohar, Jagan Lohar, Mangal Lohar and Kallu Lohar were found guilty of rioting and additionally convicted under Section 147 of the Indian Penal Code. By the impugned order of sentence dated 10.05.1996 all the seven accused persons convicted under Section 302/149 of the Indian Penal Code were sentenced to undergo rigorous imprisonment for life. The three accused namely Bhadar Lohar, Chote Babu Lohar and Ganesh Lohar were sentenced to undergo rigorous imprisonment for three years each for the offence under Section 148 of the Indian Penal Code. The rest four accused namely Vijay Lohar, Jagan Lohar, Mangal Lohar and Kallu Lohar were sentenced to undergo rigorous imprisonment for two years for the offence under Section 147 of the Indian Penal Code. All the sentences were to run concurrently. 3. It is pertinent to mention here that all the convicts assailed their conviction in three criminal appeals being Criminal Appeal (DB) No. 103 of 1996(R) and the present two criminal appeals i.e. Criminal Appeal (DB) No. 107 of 1996 (R) and Criminal Appeal (DB) No. 155 of 1996 (R). A plea of juvenility was raised before a co-ordinate Bench of this Court on behalf of three appellants Mangal Lohar, Kallu Lohar and Ganesh Lohar in Cr. Appeal (DB) No.103 of 1996 through I.A. No.4393 of 2008. The matter was referred for enquiry before the Juvenile Justice Board, by order dated 12.07.2018 to ascertain the claim of juvenility of those appellants as on the date of occurrence i.e. 18.03.1992. The Juvenile Justice Board after due enquiry found that all those three appellants namely Mangal Lohar, Ganesh Lohar and Kallu Lohar were juvenile on the date of occurrence i.e. 18.03.1992 vide orders dated 27.08.2018 and 12.10.2018 respectively. The Juvenile Justice Board after due enquiry found that all those three appellants namely Mangal Lohar, Ganesh Lohar and Kallu Lohar were juvenile on the date of occurrence i.e. 18.03.1992 vide orders dated 27.08.2018 and 12.10.2018 respectively. The co-ordinate Bench of this Court vide order dated 06.12.2018 upon consideration of the report of the Juvenile Justice Board, Jamshedpur held as under:- “Hence, we do not enter into the adjudication of the impugned judgment of conviction dated 9.5.1996, passed by the learned 2nd Additional Sessions Judge, Jamshedpur, in S.T. No. 168 of 1993, convicting these appellants for the offences under Sections 302/149 and 147/148 of the Indian Penal Code, which we maintain. However, since the appellants are found to be juveniles, the sentence for R.I. for life cannot be sustained against these appellants and accordingly, the impugned order of sentence 10.5.1996, passed by the Trial Court below, so far as these three appellants are concerned, are hereby, set aside.” 4. It is further pertinent to mention here that the appellant/convicts Jagga Lohar @ Jaggar Lohar in Criminal Appeal (DB) No. 107 of 1996 had died during pendency of the appeal on 16.11.2004. This was taken note on the basis of the report received from the concerned police station vide order dated 05.07.2018. It was accordingly held that Criminal Appeal (DB) No. 107 of 1996(R) abates as against appellant Jagga Lohar @ Jaggar Lohar and shall continue with respect of the other surviving appellants. Thus these present two appeals survives on behalf of the appellants Bhadar Lohar and Chhotebabu Lohar, appellants in Criminal Appeal (DB) No.107 of 1996 and appellant Vijay Lohar in Criminal Appeal (DB) No.155 of 1996(R). 5. We now proceed to deal with the present challenge. Investigation was started after institution of formal F.I.R. bearing no. Sidgora P.S. Case No. 26 of 1992 dated 19.03.1992 under Sections 147, 148, 149, 341, 342, 109 and 302 of the Indian Penal Code against eight named and 20-25 unknown accused on the basis of fardbeyan of Pappu Singh (P.W.-2) son of Sahajanand Singh recorded on 18.03.1992 at 24 Hours at TMH emergency ward by sub-inspector and officer-in-charge, N.K. Sahay, Sidgora police station. It inter alia alleged as follows: that on 18.03.1992 at around 09:00 in the night informant Pappu Singh alongwith the deceased Ravindra Giri and his brother Devendra Giri (P.W.-6) and some young children of the village proceeded for Holika Dahan with certain offerings (prasad and coconut) from their house. They reached a field near Bus Dipot, North of Baridih road where pieces of wood had been kept for Holika Dahan. When they were making offerings during Holika Dahan at around 11:15 in the night then eight persons namely Bhadar Lohar armed with a knife in his hand, (2) Chote Babu Lohar with knife in his hand (3) Ganesh Lohar with sword in his hand, (4) Vijay Lohar with an iron pipe in his hand, (5) Jaggar Lohar with hockey stick in his hand, (6) Mangal Lohar with a lathi in his hand, (7) Kallu Lohar with a lathi in his hand and (8) Raju Seikh with a lathi in his hand alongwith 20 -25 persons of Lohhra Basti Vidyapati Nagar came there. As soon as they reached there, Raju said to the others “Kya Dekhta hai Yahi Mauka Hai” (what are you seeing this is an opportunity) to kill Ravindra Giri. On hearing this all these persons armed with weapon surrounded Ravindra Giri and Chhotebabu Lohar caught hold of Ravindra Giri while Bhadar Lohar gave a knife blow on his neck as a result of which Ravindra Giri fell down shouting. As soon as he fail down Chotebabu Lohar gave a knife blow in his chest and Ganesh Lohar gave a blow by sword in his back. All others started assaulting him with lathi, danda, bow-arrow and iron pipe and got him injured all over. On account of hulla raised due to this assault number of persons assembled there. These accused persons thereafter fled away. Informant alongwith Devendra Giri (P.W.-6) brother of deceased took the deceased on the pakka road, a police patrolling party had reached there and took the deceased to Tata Main Hospital for treatment where he died. It is further alleged that the reason for this assault was a dispute/quarrel between the deceased and accused persons during the marriage of Birgu Lohar on 11.03.1992 where the accused persons had also participated in the marriage. It is further alleged that the reason for this assault was a dispute/quarrel between the deceased and accused persons during the marriage of Birgu Lohar on 11.03.1992 where the accused persons had also participated in the marriage. One Yogendra Singh a driver had mediated between the parties on 16.03.1992 and as a result of the panchayti the dispute had been resolved. On these allegations the informant has alleged that the accused persons had by forming an unlawful assembly armed with various weapons committed the murder of Ravindra Giri. The informant further stated that he has read over his statement, understood it and put his signature on it in the presence of the father and brother of the deceased. P.W.-5, Sheo Dayal Giri father of the deceased and P.W.-6, Devendra Giri brother of the deceased also put their signature as witnesses to the fardbeyan. 6. Upon completion of investigation chargesheet was filed bearing no. 47 of 1992 dated 09.06.1992 under Sections 147/148/149/341/342/109/302 of the Indian Penal Code against all the eight accused persons who were in custody. 7. Cognizance was taken on 18.06.1992 by the learned trial court and the case was committed to the learned court of Sessions on 30.07.1993. 8. Thereafter charges were framed against all the eight accused persons under Section 302/149 of the Indian Penal Code vide order dated 14.10.1983. Charges were also framed against five accused persons namely, Vijay Lohar, Raju Seikh @ Raju Lohar, Jaggar Lohar, Mangal Lohar and Kailu Lohar under Section 147 of the Indian Penal Code on the same date. Charges were read over and explained to the accused persons in Hindi to which they pleaded not guilty and claimed to be tried. Further charges were framed under Section 148 of the Indian Penal Code against accused Bhadar Lohar, Chotababu Lohar and Ganesh Lohar and five others on 14.10.1983 by the learned 2nd Additional Sessions Judge, Jamshedpur. This charge was also read and explained to them in Hindi to which they pleaded not guilty and claimed to be tried. Thus, the case was put up for trial. During the course of trial prosecution examined nine witnesses. It is pertinent to mention here that at the stage of 313 Cr.P.C. Raju Seikh did not appear, thus his bail bonds was cancelled vide order dated 15.02.1996 by issuing non-bailable warrant of arrest. Thus, the case was put up for trial. During the course of trial prosecution examined nine witnesses. It is pertinent to mention here that at the stage of 313 Cr.P.C. Raju Seikh did not appear, thus his bail bonds was cancelled vide order dated 15.02.1996 by issuing non-bailable warrant of arrest. On subsequent date on 01.03.1996 processes under section 82 and 83 Cr.P.C. had been issued against the accused and notice to the bailor but no action had been taken in this regard and thus, Raju Seikh remains absconder. 9. The trial continued as against remaining seven accused persons. During the course of trial prosecution examined nine witnesses in support namely: P.W.1- Shankar Sahu P.W.2- Pappu Kumar Singh P.W.3- Mata Prasad P.W.4- Gopal Kumar Singh P.W.5- Shiv Dayal Giri, father of the deceased P.W.6- Devendra Giri, brother of the deceased P.W.7- Dr. A.K. Choudhary, who conducted the autopsy on the dead body of the deceased and proved the postmortem report as exhibit-2 P.W.-8- Sahajanand Singh, the Officer-in-charge P.W.-9 Naresh Shahay, the investigating officer. Prosecution also adduced certain documentary evidence up to exhibit-5 as under: Ext.-1: signature of Pappu Kumar Singh (P.W. 2) on fardbeyan, Ext-1/1: signature of Shiv Dayal Giri (P.W. 5) on the fardbeyan Ext -1/2: signature of Devendra Giri (P.W. 6) on the fardbeyan Ext -2: postmortem report Ext -3: fardbeyan Ext -4: inquest report (carbon copy dated 19.03.1992) Ext -5: formal F.I.R. All the exhibits except, exhibit-4 were adduced without objection. 10. After closure of the prosecution evidence, the material evidence was put to the accused persons during their examination under Section 313 Cr.P.C. Their case was of denial and that they have been falsely implicated. They also stated that they were innocent in the matter. No defence witness or documentary evidence were adduced on behalf of the accused. 11. Learned trial court upon consideration of the entire material evidence on record and the submissions of the learned counsel for the parties was pleased to record conviction for the offence named herein above against the respective accused persons. These three surviving appellants are in appeal before us. 12. Learned senior counsel for the appellant has placed the evidence on record in detail. These three surviving appellants are in appeal before us. 12. Learned senior counsel for the appellant has placed the evidence on record in detail. In support of the challenge to the impugned conviction and order of sentence he has urged the following factual and legal grounds:- (I) It is submitted that prosecution witnesses no.1 to 4 and 8 have turned hostile. P.W.-2 informant has also turned hostile. The case rests on the testimony of two related witnesses P.W.-5 father of the deceased and P.W.-6 the brother of the deceased who claims himself to be an eye witness. Their testimony is not corroborated by any independent witness. P.W.-5 as per his deposition was not witness to the occurrence. (II) The prosecution witnesses have described the weapons carried by individual eight accused persons and asserted that Ravindra Giri the deceased was assaulted both by sharp cutting weapon like knife and sword but the medical evidence does not find any incidence of injury by any hard and blunt substance like lathi, danda etc. Evidence of the medical witness P.W.-7 has been placed alongwith the postmortem report exhibit-2 in support of the submission. Learned counsel has relied upon the judgment of the Apex Court in the case of Amar Singh and others vs. State of Punjab as reported in [1987 East CrC 721 (SC)] para 10-13 thereof and AIR 1988 SC 1158 in the case of Awadhesh and another v. State of Madhya Pradesh para 10 and 11 thereof, to advance the submission that such inconsistency between the medical evidence and eye witness is a fundamental defect in prosecution case. Therefore conviction cannot be sustained. (III) Based on the evidence on record viz-a-viz the incidence of injuries on the body of the deceased, learned Senior Counsel for the appellant has relied upon a judgment of the Hon’ble Apex Court in the case of Dinesh Kumar & Anr. Versus State of M.P. as reported in 2001 (5) Supreme 429 and submitted that when not a single injury which could be the result of blow with lathi and danda has been found on the body of the deceased, conviction of these appellants cannot be sustained in the eye of law. Versus State of M.P. as reported in 2001 (5) Supreme 429 and submitted that when not a single injury which could be the result of blow with lathi and danda has been found on the body of the deceased, conviction of these appellants cannot be sustained in the eye of law. He has also referred to the allegations made in the fardbeyan and the testimony of P.W.-5 and P.W.-6 and submitted that appellant Vijay Lohar was alleged to be armed with an iron pipe at best but no such corresponding injury has been found by the medical expert. Therefore the prosecution case as against Vijoy Lohar in any case has to fail. (IV) It is submitted that P.W.-9 the investigating officer claims to have seized the blood stained earth from the place of occurrence but there is no seizure list showing that and no such blood stained earth was sent for examination to the Forensic Science Laboratory. Absence of proof in that regard has a fatal consequence upon the entire prosecution story. In support of the aforesaid submission reliance is placed upon the case of Laxmi Singh vs. State of Bihar as reported in AIR 1976 SC 2263 para-13 thereof. Reliance is also placed upon the case of Satya Narain Bhagat and another vs. State of Bihar as reported in 1992 Criminal Law Journal 2156 at paragraph 19 thereof; (V) While placing the evidence of the prosecution witnesses, it has been submitted that the entire case of the prosecution hinges upon the testimony of P.W.-6 a solitary eye witness. P.W.-6 is the brother of the deceased and a related witness. His testimony without corroboration by independent witness is fraught with risk. P.W.-6 in his statement at para 3 has stated that on hearing hulla, Mata Prasad and Pappu Singh Lohar, P.W.-2 came to the place of occurrence. P.W.-2 who has been declared hostile though he is the informant of the case and he has during cross-examination stated that he reached the place on hearing hulla. P.W.-6 at paragraph 3 states that the body of Devendra Giri was taken to Tinplate hospital in a police vehicle. However, P.W.-9 the investigating officer has denied that the body of Revindra Giri was taken to Tinplate hospital in the police jeep at para 17 of his deposition. P.W.-6 at paragraph 3 states that the body of Devendra Giri was taken to Tinplate hospital in a police vehicle. However, P.W.-9 the investigating officer has denied that the body of Revindra Giri was taken to Tinplate hospital in the police jeep at para 17 of his deposition. Statement of P.W.-5 at paragraph 17 has also been placed by learned Senior counsel for the appellants where he states that the body of his son Ravindra Giri was taken to TMH Hospital in a police jeep. It is submitted that these inconsistencies are not minor in nature and in fact belie the credibility of the prosecution witnesses P.W.-5, P.W.-6 and P.W.-9. On the basis of this untrustworthy evidence the conviction of all these appellants have been recorded by the learned trial court, therefore suffers from serious infirmity. Reliance is placed on the judgment of the Apex Court in support of the aforesaid proposition in the case of Badri v. State of Rajasthan as reported in AIR 1976 SC 560 at paragraph 11 and 12 thereof; and on the case of Ramji Surjya & Another vs. State of Maharashtra as reported in AIR 1983 SC 810 at paragraph 8 and 12. (VI) Learned counsel has also referred to the statement of P.W.-6 and submits that it does not show repetition of injuries by appellants Bhadar Lohar and Chote Babu Lohar who are alleged to be armed with knife. His evidence read in conjunction with the evidence of P.W.-7, Dr. A.K. Choudhary it is apparent that several incised wounds on the body of the deceased and like other sharp cutting and pointed injuries on the body of the deceased remained unexplained. (VII) Learned counsel for the appellants has referred to the statement of P.W.-9 at paragraph 16 which refers to the date of recording of the fardbeyan and the F.I.R. as 19.03.1992; the date on which it was purportedly sent to the Magistrate i.e. 20.03.1992 and the date on which the learned Chief Judicial Magistrate had seen the F.I.R. i.e. 23.03.1992. It is stated that P.W.-9 failed to mention any time of sending of the F.I.R. There is no document to show that when the F.I.R. was actually sent to the Magistrate. These statements clearly show an inordinate and extraordinary delay in sending the F.I.R. to the Magistrate which has not been explained at all by the I.O. on behalf of the prosecution. These statements clearly show an inordinate and extraordinary delay in sending the F.I.R. to the Magistrate which has not been explained at all by the I.O. on behalf of the prosecution. This leaves enough scope for embellishments and concoction in the whole prosecution story. In support of the aforesaid submissions he has placed reliance in the case of Ishwar Singh v. State of Uttar Pradesh as reported in AIR 1976 Supreme Court 2423 paragraph 5 thereof; Reference is also made to the provisions of 157 Cr.P.C. which mandates the investigating officer to forthwith send the First Information Report to the Magistrate. Failure to comply the strict letter of law is not only these inexcusable but creates a grave doubt whether the First Information Report is the true story of the occurrence or not? It is replete with embellishments and additions which the informant party took time to think over in order to implicate these accused persons on false allegations. This flaw on the part of the prosecution is sufficient to discard the entire case of the prosecution. (VIII) Learned counsel for the appellant has also placed reliance upon the case of Malleshappa versus State of Karnataka as reported in 2007 (3) SCC 399 para 27 thereof and Raj Kumar Singh @ Raju @ Batya versus State of Rajasthan as reported in 2013 (3) JBCJ 282 (SC), para 17 and submitted that conviction cannot be based on conjunctures and surmises alone. If the entire case of the prosecution is taken in totality the prosecution has completely failed to prove its case beyond shadow of all reasonable doubts. Learned Senior Counsel for the appellants submits that the informant has turned hostile and as such the very basis of the prosecution case falls to the ground. The failure on the part of the prosecution to produce the dispatch register showing the sending of the F.I.R. to the Magistrate on the part of P.W.-9 I.O. are such circumstances on which adverse inference needs to be drawn in terms of Section 114 (g) of the evidence Act. The failure on the part of the prosecution to produce the dispatch register showing the sending of the F.I.R. to the Magistrate on the part of P.W.-9 I.O. are such circumstances on which adverse inference needs to be drawn in terms of Section 114 (g) of the evidence Act. Learned Senior counsel for the appellants has summarized his submission on the aforesaid legal grounds and urged that the case is 27 years old, conviction was recorded in the year, 1996 itself, therefore due to elapse of time and for all these inconsistencies and contradictions in the prosecution story, the appellant deserve to be treated with leniency and allowed the benefit of doubt. The impugned judgment therefore may be set aside. 13. Learned Additional Public Prosecutor has supported the findings of the learned court. He submits that the conviction of the accused/appellants can be recorded on the testimony of the sole eye-witness P.W. 6 even though he may be related to the deceased, since his evidence is wholly trustworthy and reliable. P.W. 6 and P.W. 5 brother and father of the deceased both were signatories to the recording of the fardbeyan. The fardbeyan was proved as Exhibit- 3 by the Investigating Officer. Therefore, the fact that P.W. 2 has turned hostile would not lead to discarding of the entire fardbeyan itself. P.W. 2 even though turned hostile has identified his signature on the fardbeyan during cross-examination by the learned Additional Public Prosecutor. P.W. 6 who was accompanying the deceased at the time of occurrence has in his deposition indicated in sufficient detail the presence of the accused persons including these three appellants and the weapons with which they were armed. He has also described that on the instigation of Raju Sheikh, the assault was committed by the accused persons with knife, sword as well as lathi, danda. The deceased fell down and died as a result of the grievous injuries sustained on him which have been found by the medical Officer P.W. 7 during course of autopsy on his dead body. P.W. 7 has proved the post mortem report which shows existence of several external injuries being incised wounds on vital parts of the body. P.W. 7 has also found several internal injuries on the body of the deceased including fracture of vertebra, puncture of lung at four places, puncture of liver etc. P.W. 7 has proved the post mortem report which shows existence of several external injuries being incised wounds on vital parts of the body. P.W. 7 has also found several internal injuries on the body of the deceased including fracture of vertebra, puncture of lung at four places, puncture of liver etc. In the opinion of the Doctor death was caused due to damage to vital organs like lungs, liver, stomach by above noted injuries leading to haemorrhage and shock. Time since death was within twelve hours from the time of post mortem examination. The post mortem examination was done on 19.03.1992 at 11.45 A.M. P.W. 5, father of the deceased has deposed in equally truthful manner and stated that he had reached the place of occurrence on hearing hulla and found the deceased fallen after the assault with several injuries on his body and was bleeding. He had also seen these accused persons fleeing from the spot. This witness has also identified his signature on the fardbeyan as Exhibit- 1/1. Learned counsel for the State submits that minor inconsistencies in the statement of these prosecution witnesses could not lead to rejection of the entire prosecution case. Therefore, the contention of the appellants on that score is fit to be rejected. Learned Additional Public Prosecutor submits that the date of institution of the F.I.R. was 19.03.1992. Investigating Officer (P.W. 9) in his statement at paragraph- 16 has been able to satisfactorily explain the dispatch of the F.I.R. on account of certain entries required at the police station, on 20.03.1992, that was a Friday. Since the incidence occurred on the night of Holika dahan which is a full moon night, the identification of the accused cannot be doubted. 21st March and 22nd March being Saturday and Sunday in conjunction with the Holi Festival, the F.I.R. was seen by the Magistrate on 23.03.1992. This delay is satisfactorily explained and not fatal for the prosecution case. The defence has not been able to show that because of the F.I.R. being seen on 23.03.1992, the informant and the investigating agency had been able to embellish the fardbeyan with any concoction to implicate these accused persons. This delay is satisfactorily explained and not fatal for the prosecution case. The defence has not been able to show that because of the F.I.R. being seen on 23.03.1992, the informant and the investigating agency had been able to embellish the fardbeyan with any concoction to implicate these accused persons. The fardbeyan and the statement of P.W. 5 and P.W. 6 both substantiate that there was a dispute between the accused and the deceased during the marriage of Bhrigu Lohar as deceased has expressed his inability to provide money to purchase a goat for their feast. The accused persons bore a grudge against the deceased and on finding opportunity on the night of Holika dahan inflicted numerous injuries by sharp cutting weapons and hard and blunt substances by forming an unlawful assembly. It cannot be expected of the prosecution witnesses to graphically explain individual injuries inflicted by individual members of an unlawful assembly in graphic detail in such a case. Therefore, even if the medical witness has not found any injury in particular of hard and blunt substance, appellant especially Vijay Lohar who was armed with an iron pipe cannot be absolved of the liability of being a member of an unlawful assembly which acted in furtherance of their common object to kill the victim Ravindra Giri as per Section 141 and 149 of the Indian Penal Code. Much mileage therefore cannot be drawn on the testimony of the medical witness on the absence of injuries by hard and blunt substance, more so when the deceased had several injuries on his body including internal organs which duly correspond to the assault by the members of the accused party variously armed with sharp cutting weapons also. 14. Learned APP has further submitted that the Investigating Officer who had seized the blood stained earth has categorically stated during trial that it will be sent to the F.S.L under orders of the superior authorities. Mere non-sending of the blood stained earth to the F.S.L or its non-production during trial will not amount to be a fatal flaw in the prosecution case if read in its entirety. Learned Additional Public Prosecutor has summarised his submissions on these points after placing the material evidence on record and forcefully supported the findings of the learned trial court as against these accused persons. Learned Additional Public Prosecutor has summarised his submissions on these points after placing the material evidence on record and forcefully supported the findings of the learned trial court as against these accused persons. He further submits that the order of conviction as against the juveniles has been maintained by this court and it is only the order of sentence which has been set aside as juveniles could not have been sentenced for life imprisonment under the Juvenile Justice (Care and Protection of Children) Act, 2000. Therefore, appellants who were members of the unlawful assembly cannot derive benefit of the fact that three convicts were declared juvenile during pendency of this appeal. The impugned judgment is well considered and based upon proper appreciation of the evidence on record. It does not deserve any interference in the appeal. The appeals therefore deserve to be dismissed. 15. We have considered the submission of the learned counsel for the parties, gone through the entire material evidence on record and also perused the impugned judgment. We now proceed to test whether the prosecution has been able to establish its case on the basis of the evidence brought on record. At the outset, it is to be noted that out of the nine prosecution witnesses P.Ws. 1, 2, 3, 4 and 8 have been declared hostile. P.W. 2 was the informant. P.W. 2 in his cross-examination by the learned A.P.P. has however identified his signature on the fardbeyan as Exhibit- 1. This fardbeyan was recorded in the presence of P.W. 5 and P.W. 6, both of whom have identified their signatures as Exhibit- 1/1 to 1/2. P.W. 9, Investigating Officer Naresh Sahay has also in his deposition proved the fardbeyan of Pappu Kumar Singh recorded in the presence of P.W. 5 and P.W. 6 Shivdayal Giri and Devendra Giri, as Exhibits- 1 to 1/2. He has proved the fardbeyan as Exhibit- 3. Investigating Officer Naresh Sahay (P.W. 9) was the Sub-Inspector who had recorded the fardbeyan. The fact that P.W. 2 was declared hostile, therefore could not wash away the institution of the fardbeyan altogether in the presence of such testimony of P.W. 5, P.W. 6 and P.W. 9. It is appropriate to refer to the opinion of the Apex Court in the case of Satish @ Bobby vs. State of Haryana as reported in (2016) 14 Supreme Court Cases 368. It is appropriate to refer to the opinion of the Apex Court in the case of Satish @ Bobby vs. State of Haryana as reported in (2016) 14 Supreme Court Cases 368. The maxim Falsus in uno, falsus in omnibus has not been accepted in India. It is well settled that the testimony of a hostile witness is not required to be rejected whole and sole. It has to be read with care and caution. The grain has to be separated from the chaff. Reliance is placed upon the judgment of the Apex Court in the case of Raja v. State of Haryana, (2015) 11 SCC 43 containing the opinion at paragraph- 20 and 21, which is quoted as under: “20. Another circumstance which needs to be noted is that Sukha PW 7, a taxi driver, has deposed that on 18-1-2003 about 11.00 p.m. while he was going to Fatehabad for taking passengers, he saw a bullock cart parked in front of the house of the accused and certain persons were tying a bundle in a “palli”. On query being made by him, the accused persons told him that they are carrying manure to the fields. Though, this witness has given an exaggerated version and stated differently about the time of arrest, yet his testimony to the effect that he had seen the accused with a bundle in “palli” at a particular place cannot be disbelieved. The maxim falsus in uno, falsus in omnibus, is not applicable in India. In Krishna Mochi v. State of Bihar, it has been held thus: (SCC pp. 113-14, para 51) “51. … The maxim falsus in uno, falsus in omnibus has no application in India and the witnesses cannot be branded as liars. The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) has not received general acceptance nor has this maxim come to occupy the status of the rule of law. It is merely a rule of caution. All that it amounts to is, that in such cases testimony may be disregarded, and not that it must be disregarded.” 21. In Yogendra v. State of Rajasthan, it has been ruled that: (SCC p. 404, para 13) “13. … The court must assess the extent to which the deposition of a witness can be relied upon. All that it amounts to is, that in such cases testimony may be disregarded, and not that it must be disregarded.” 21. In Yogendra v. State of Rajasthan, it has been ruled that: (SCC p. 404, para 13) “13. … The court must assess the extent to which the deposition of a witness can be relied upon. The court must make every attempt to separate falsehoods from the truth, and it must only be in exceptional circumstances, when it is entirely impossible to separate the grain from the chaff, for the same are so inextricably intertwined, that the entire evidence of such a witness must be discarded.” Thus viewed, the version of PW 7 to the extent that has been stated hereinabove is totally acceptable and credible.” 16. We now proceed to deal with the testimony of P.W. 6, Devendra Giri the brother of the deceased Ravindra Giri as he has been produced as an eye-witness. During the course of his examination, he has stated that the incidence is of 18.03.1992 at around 11.00 in the night; place of occurrence is in the field near the Baridih Bus Depo. He along with his brother had gone for Holika Dahan. P.W. 2 and P.W. 3 Mata Prasad along with few children whose name he did not know were also with them where Bhadar Lohar appellant armed with knife, Chote Babu Lohar appellant herein armed with knife, Ganesh Lohar another accused armed with sword, Vijay Lohar appellant armed with iron pipe, other accused persons i.e. Jagar Lohar with hockey stick, Mangal Lohar with lathi, Raju Lohar with lathi, Kalua Lohar with lathi and other 20-25 persons variously armed with bow and arrow, bhujali, knife and danda etc. had assembled. Raju Lohar was the order giver who stated that “mauka hai Ravindra Giri ko maro” meaning that it is an opportunity to kill Ravindra Giri. On this instigation, appellant Chhotebabu Lohar caught hold of the deceased Ravindra Giri, Bhadar Lohar (appellant) inflicted a knife blow in his stomach, Ganesh Lohar inflicted a sword injury in his stomach and the sword came out from the other side, Chotubabu Lohar, appellant gave a knife blow in front of his neck which came out and then other persons assaulted indiscriminately with knife and other weapons in their hands. Deceased Ravindra Giri fell down. On the shout of the P.W. 6 Pappu Singh, Mata Prasad came. Deceased Ravindra Giri fell down. On the shout of the P.W. 6 Pappu Singh, Mata Prasad came. They lifted the deceased and brought him to the road. Thereafter, he went to the police station, by that time the police patrolling party had reached there. The Officer-in-charge Naresh Sahay had come with the vehicle. In that vehicle the deceased was taken to Tinplate Hospital where the doctor referred him to Tata Main Hospital and on being brought there, he was declared dead. This P.W. 6 has thereafter narrated the incidence of quarrel between the deceased and the accused persons during the marriage of Brigu Lohar, that was mediated by one Jogendra Singh Tiger and the matter was resolved, but the accused persons bore a grudge against him even thereafter. This witness further states at paragraph- 5 that his testimony was recorded by the Officer-in-charge and a case was registered in the presence of Pappu Singh P.W. 2 Mata Prasad and his father P.W. 5. He has identified his signature on the fardbeyan as Exhibit- 1/2 and also stated that Pappu Singh (P.W. 2) and his father P.W. 5 had identified their signatures on the fardbeyan. He further states that he and his brother Ravindra Giri, the deceased were staying in the same house. At paragraph- 10 of his cross-examination he denies enmity with the entire population of the Vidyapati Nagar which is about 3500. This witness has at paragraph- 16 specifically stated that after the assault his brother fell down and he had raised hulla when one women came also to intervene but he could not name her. He also stated that as a result of the assault the vest which the deceased was wearing had got several punctured holes. He was not aware whether the police had seized certain materials from the place of occurrence. Several persons had assembled at the place of occurrence thereafter. P.W. 5 Sheo Dayal Giri, the father of the deceased in his deposition states about the time and place of occurrence in the manner stated by P.W. 6. He has described the place of occurrence as about 40-45 feet from the chowk (spot). He has stated that he reached the place of occurrence on hearing the hulla by the accused persons that “mar do mauka hai” (kill him this is an opportunity). He has described the place of occurrence as about 40-45 feet from the chowk (spot). He has stated that he reached the place of occurrence on hearing the hulla by the accused persons that “mar do mauka hai” (kill him this is an opportunity). He reached to the place and saw his son Ravindra Giri fallen on the ground with several injuries on his body and he was also bleeding. He also saw the accused persons fleeing from the place of occurrence. He also states that these eight accused persons had come from the side of Vidyapati Nagar and that appellant Bhadar Lohar was armed with a knife, Chhotubabu Lohar (appellant) was armed with a knife, Ganesh Lohar with sword, Vijay Lohar (appellant) with an iron pipe, Jagar Lohar with a hockey stick, Guddu Lohar with a lathi, Mangal Lohar with lathi, Raju Sheikh with lathi. They were proceeding towards the field. This witness has further stated that the body of Ravindra Giri was taken to the Tata Main Hospital in the police jeep which had arrived by at that time. He further states that his fardbeyan was recorded and that he had put his signature thereupon which is Exhibit- 1/1. P.W. 5 has also made reference to the dispute between the deceased and the accused during the marriage of Brighu Lohar which was the reason for the assault by the accused persons. This witness has also stated that he knows the accused persons from about 20 years before but he had no such dispute with them. During his cross-examination he has answered the query about the quarrel between the accused and the deceased during the marriage of Bhrigu Lohar for the purchase of a goat at the instance of the accused persons which Ravindra Giri his son stated he could not pay. He had stated that he would ask for money from his father. This witness does not claim to be an eye witness in the sense that the occurrence took place right in front of his eyes but he was very close to the place of occurrence and has truthfully stated that he had reached the place of occurrence immediately after hearing the hulla and had seen the accused persons fleeing from the place. The accused persons were variously armed and were fleeing from the place and his son Ravindra Giri was lying there in a pool of blood with several injuries. 17. The Medical Officer P.W. 7 who conducted the autopsy on the body of the deceased has proved the post mortem report. The following injuries were found on external examination and further on dissection: (I) External appearances:- Average height, fair complexion, rigor mortise whole body, whole of face, neck, front of chest and with upper limbs stained with blood (II) External Injuries:- Following external injuries were noted upon the dead body of the deceased. (a) Incised wounds:- Sharp transverse cut over left side of front of chest, 7.5 below the left nipple, 2cm x 1cm x chest cavity deep. Sharp transverse cut over the body of sternum on the left side of mid-line of body 15cms below the suprasternal notch, 2cm x 1cm x bone deep. Sharp transverse cut over left side of front of chest 3cm above the left nipple 2cm x 1cm x chest. Sharp transverse cut on the midclavicular part on left side 1.5cm x 0.5cm x chest. Sharp transverse cut along the medial third of left clavicle, 1.5cm x 0.5cm x bone deep. Sharp transverse cut over body of sternum 6cm below the suprasternal notch 1cm x 0.5cm x bone. Sharp transverse cut over right side of body of sternum 6cm below the medial third of right clavicle 1.5cm x 0.5cm x bone deep. Sharp vertical cut 7cm below the lateral end of right clavicle 1.5cm x 0.5cm x chest. Sharp cut parallel to the body of left mandible 1cm x 0.5cm x skin deep. Sharp cut over face parallel to the body on left side 1.5cm lateral to midline of chin 0.5cm x 0.5cm x bone. Sharp cut over right side of check 2.5cm below the lateral most end of right orbit 1cm x 0.25cm x bone deep. Sharp transverse cut left side of back of chest 7.5cm below the spine of scapula, 2cm x 1cm x chest. Sharp vertical cut over left side of back of chest placed 20cm below spine of scapula, 2cm x 1cm x chest. Sharp oblique cut left side of back of chest placed 7.5cm lateral to the D-9 vertebral spine, 2cm x 1cm x chest. Sharp vertical cut over left side of back of chest placed 20cm below spine of scapula, 2cm x 1cm x chest. Sharp oblique cut left side of back of chest placed 7.5cm lateral to the D-9 vertebral spine, 2cm x 1cm x chest. Sharp vertical cut placed 8cm lateral to the spine of D-10 vertebra 1cm x 0.5cm x chest wall. Sharp cut over midline of back of chest at the level of D-7 spine 1cm x 1cm x bone. Sharp vertical cut right side of back of chest 0.5cm lateral to the D-10 vertebral spine, 0.5cm x 0.5cm x chest wall. Sharp oblique cut over right scapular region of back placed 7.5cm below the spine of right scapula 0.5cm x 0.25cm x bone deep and sharp oblique cut right side of back of trunk 0.5cm right lateral to the L-2 spine, 1cm x 0.25cm x skin. Sharp transverse cut 6cm right lateral to the L-4 lumber spine 0.5cm x 0.2cm x skin deep end. (III) Internal Injuries:- 10th rib fractured (cut) underneath the wound. Left lung punctured at four places. Right lung punctured at 3 (three) places. Liver punctured at two places on left lobe. Stomach punctured anteriorly at three places. Inside chest one liter of blood and inside abdomen one liter of blood found. (IV) Visceras:- Heart chambers empty, kidney travel to bladder empty. Spleen NAD stomach rice, pulse, vegetable found. Brain NAD. Opinion:- (1) The above noted injuries are antimortem in nature and caused by sharp cutting weapon. (2) Death was due to damage to vital organs like lungs, liver, stomach by above noted injuries leading to hemorrhage and shock. (3) Time since death within 12 hours from the time of post-mortem examination. These injuries are several and sharp cutting in nature on the vital part of the body which has resulted in the puncture of internal organs like lung, liver, stomach etc. and caused huge bleeding. Death was due to haemorrhage and shock as a result of these injuries. In the opinion of the doctor these injuries were ante mortem in nature and caused by sharp cutting weapon. 18. Much argument has been made by learned Senior Counsel for the appellants on the absence of injuries caused by hard and blunt substance on the body of the deceased so as to draw benefit to the appellant Vijay Lohar who was allegedly armed with an iron pipe. 18. Much argument has been made by learned Senior Counsel for the appellants on the absence of injuries caused by hard and blunt substance on the body of the deceased so as to draw benefit to the appellant Vijay Lohar who was allegedly armed with an iron pipe. While dealing with the aforesaid contention we are inclined to quote the provisions of Section 141 under chapter VIII of the Indian Penal Code which defines unlawful assembly as under: “141. Unlawful assembly. – An assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is – First.- To overawe by criminal force, or show of criminal force, [the Central or any State Government or Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or Second. – To resist the execution of any law, or of any legal process; or Third.- To commit any mischief or criminal trespass, or other offence; or Fourth. – By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth.- By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation.- An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.” Section 149 IPC defines that every member of unlawful assembly is guilty of the offence committed in prosecution of common object it reads as under: “149. Explanation.- An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.” Section 149 IPC defines that every member of unlawful assembly is guilty of the offence committed in prosecution of common object it reads as under: “149. Every member of unlawful assembly guilty of offence committed in prosecution of common object- If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.” A plain reading of the aforesaid provisions show that if the offence is committed by a member of the unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in the prosecution of that object, every person, who, at the time of committing of the offence, is a member of the same assembly is guilty of the same offence. Reliance is placed upon the judgment of the Hon'ble Apex Court in the case of Lalji and others vs. State of U.P. as reported in (1989) 1 SCC 437 . The opinion of the Apex Court in para- 9, 10 & 11 are profitably quoted hereunder:- “9. Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hands commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under section 149. It must be noted that the basis of the constructive guilt under section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge. 10. Thus, once the Court hold that certain accused persons formed in unlawful assembly and an offence is committed by any member of that assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing of that offence was a member of the same assembly is to be held guilty of that offence. After such a finding it would not be open to the Court to see as to who actually did the offensive act or require the prosecution to prove which of the members did which of the offensive acts. The prosecution would have no obligation to prove it. 11. After such a finding it would not be open to the Court to see as to who actually did the offensive act or require the prosecution to prove which of the members did which of the offensive acts. The prosecution would have no obligation to prove it. 11. In the instant case after having held that the appellants formed an unlawful assembly carrying dangerous weapons with the common object of resorting to violence (as described in the charge) it was not open to the High Court to acquit some of the members on the ground that they them- selves did not perform any violent act, or that there was no corroboration of their participation. In other words, having held that they formed an unlawful assembly and committed an offence punishable with the aid of section 149 I.P.C., the High Court erred in examining which of the members only did actively participate and in acquitting those who, according to the Court, did not so participate. Doing so would amount to forgetting the very nature and essence of the offence created by section 149 I.P.C The Court in undeserving cases cannot afford to be charitable in the administration of criminal justice which is so vital for peace and order in the society.” 19. The prosecution evidence especially of P.W. 5, P.W. 6 read in conjunction with the statement of P.W. 9 Investigating Officer leaves us with no manner of doubt that the accused persons had arrived at the place of occurrence armed with several weapons such as knife, sword, iron pipe, lathi, danda etc. with a common object to kill Ravindra Giri (the deceased). As soon as the accused persons reached the place and saw Ravindra Giri, Raju Sheikh @ Raju Lohar gave an instigation to kill saying that this is an opportunity. Immediately on his instigation Ravindra Giri was caught by Chhotababu Lohar one of the appellants herein and Bhadra Lohar appellant gave a knife blow, accused Ganesh Lohar inflicted a sword blow and other accused persons including appellant Vijay Lohar also indulged in the assault. The assault was committed in furtherance of the common object of the unlawful assembly to kill Ravindra Giri. Therefore every member of the unlawful assembly was liable for the act of the unlawful assembly even though his perceptible active participation may not be required to be proved individually. The assault was committed in furtherance of the common object of the unlawful assembly to kill Ravindra Giri. Therefore every member of the unlawful assembly was liable for the act of the unlawful assembly even though his perceptible active participation may not be required to be proved individually. The presence of the accused persons was proved through the testimony of P.W.5 which corroborates the statement of the eye witness P.W.6 Devendra Giri. These witnesses have deposed against individual appellants and other accused persons to show their presence, participation, weapon and overt act. Applying the test approved in the case of Masalti Vrs. State of U.P. reported in AIR 1965 SC 202 as also followed in case of Inder Singh & others Vrs. State of Rajasthan reported in (2015) 2 SCC 734 , so far as the principle of caution is concerned, when the Criminal Court has to deal with evidence pertaining to commission of offence involving large number of offenders, we find that conviction can be sustained since it is supported by two witnesses who have given a consistent account of incidence in question. At this stage, it is also pertinent to mention that the constitution of the unlawful assembly did not get affected by declaration of the juvenility of the three co-convicts namely Mangal Lohar, Kalu Lohar and Ganesh Lohar as their convictions has been maintained by a co-ordinate Bench of this Court vide order dated 06.12.2018 on receipt of the report of the Juvenile Justice Board. However, interference has been made in the order of sentence in view of the provisions of the Juvenile Justice Act, Care and Protection of Child Act, 2000 as amended. The constitution of the unlawful assembly therefore remained intact. Any member of the unlawful assembly was therefore liable for the acts of the unlawful assembly and prosecution was not required to prove as to which of the injury was inflicted by which of the accused persons. In a case of assault by an unlawful assembly armed with various weapons it is indeed difficult for a witness for the prosecution to specifically name and pinpoint a particular injury attributable to a particular accused. 20. In this regard reliance placed by the learned Senior Counsel for the appellants on the case of Motilal versus State of U.P. 2001 6 Supreme 169 is misplaced. 20. In this regard reliance placed by the learned Senior Counsel for the appellants on the case of Motilal versus State of U.P. 2001 6 Supreme 169 is misplaced. A perusal of the judgment in the case of Motilal shows that the appellant was convicted under Section 302/34 and Section 307/34 of the IPC and not in aid with section 149 of the IPC. In that case five persons had filed appeal before the High Court but the High Court had by the impugned judgment acquitted two accused persons of the offence under Section 148 and converted their convictions under Section 302/149 and 307/148 of the IPC to be under Section 302 read with section 34 and section 307 read with section 34 of the IPC. The conviction did not remain under section 149 of the IPC. In that case of a conviction under section 302 read with section 34 of the IPC, the Apex Court on consideration of evidence showing secondary role in attack on the victim by lathi, when primary role of attack was by farsha attributed to another co-accused, had the occasion to modify the conviction and sentence to one under section 307 of the IPC. Learned counsel for the appellant has also placed reliance on the case of Dinesh Kumar and Others vs. State of M.P. (2001) 5 Supreme 429 in support. In this case the High Court had confirmed the conviction and sentence passed on all the four persons under Section 302 read with section 149 of the Indian Penal Code and dismissed the appeal filed by them. In the Special Leave Petition filed by those four persons, the conviction of the two appellants were found to be well merited and not fit to be reopened, therefore the Special Leave Petition was dismissed. Notices were issued in respect of the remaining two appellants and their cases were examined in the light of the injuries on the deceased with lathi blows. Considering the injuries found in the post mortem examination, and the medical evidence of P.W. 9 that there was not a single injury which could be the result of a blow with lathi or that there was not even swelling on any part of the body which could have been attributed to the lathi blow, the Apex Court was inclined to believe that no one could have inflicted blows on the deceased with lathi. The persons who were convicted and the assailants who subsequently died were the persons really involved in the crime. Therefore, the conviction of these two appellants were not sustained. 21. From the detailed gamut of facts which we have noticed in the present case, we find that the deceased suffered 'n' number of incised wounds on his body described by the medical expert as found during autopsy on the body of deceased. There were several internal injuries on the body which included fracture of the rib also. The plethora of injuries which were found on the body of the deceased were assessed by the medical officer primarily as being caused by sharp cutting pointed weapon. A perusal of the injuries on the body of the deceased shows that the deceased was subjected to multiple assaults by more than one persons. He also sustained internal injury like fracture of the rib. The number of injuries on the body of the deceased and the nature of assault committed by the eight accused persons in furtherance of the common object as part of the unlawful assembly therefore do not pursuade us to accept the contention on behalf of the appellant Vijay Lohar that he deserves to be given the benefit of doubt as no particular injury on the body of the deceased can be attributable by assault through hard and blunt substance. As it is, fracture of a rib itself could be the result of an assault by hard and blunt substance. Moreover as discussed herein above we have affirmatively held that all these accused persons were part of the unlawful assembly and had assaulted Ravindra Giri, the deceased in furtherance of their common object to kill him. The contention of the appellants based on these grounds therefore do not merit any acceptance. The medical evidence is not of such nature which could completely rule out the ocular testimony of the assault. In this regard it is profitable to rely upon the case of Umesh Singh v. State of Bihar as reported in 2013 (4) SCC 360 . At para 22 of the report it was held as under:- 22. The medical evidence is not of such nature which could completely rule out the ocular testimony of the assault. In this regard it is profitable to rely upon the case of Umesh Singh v. State of Bihar as reported in 2013 (4) SCC 360 . At para 22 of the report it was held as under:- 22. In so far as the medical evidence of the Doctor-PW8 read with the post mortem report upon which strong reliance is placed by the learned senior counsel for the appellant that death must have taken place prior to 30 to 36 hours as opined by the doctor that means it relates back to the early hours of 16.07.1996 but not at 3.30 p.m. as mentioned in the FIR. Once the time of death is drastically different from the one claimed by the prosecution its case is vitiated in law. In support of the above-said contention strong reliance placed upon the decisions of this Court on aforesaid cases are all misplaced as the same are contrary to the law laid down by this Court in Abdul Sayeed v State of Madhya Pradesh[13]. The relevant paragraphs are extracted hereunder: “33. In State of Haryana v. Bhagirath it was held as follows: (SCC p. 101, para 15) “15. The opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject.” 34. Similarly if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject.” 34. Drawing on Bhagirath case, this Court has held that where the medical evidence is at variance with ocular evidence, “it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the ‘variable’ keeping the medical evidence as the ‘constant’ ”. 35. Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to alternative possibilities cannot be accepted as conclusive. The eyewitnesses' account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. “21. … The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the ‘credit’ of the witnesses; their performance in the witness box; their power of observation, etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.” 36. In Solanki Chimanbhai Ukabhai v. State of Gujarat this Court observed: (SCC p. 180, para 13) “13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.” 39. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.” 39. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallized to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.” 22. We have also discussed the testimony of P.W. 6 at length. P.W. 6 was a natural witness to the occurrence being the brother of the deceased Ravindra Giri who had accompanied him to the place where Holika Dahan was being held. Merely because no other independent witnesses, though present there and named by him, came forward to support the prosecution during the course of trial, his testimony cannot be discarded as unreliable. P.W. 6 has been a signatory to the fardbeyan and has identified his signature along with that of his father and that of P.W. 2 as well. P.W. 2 as such despite being declared hostile has identified his signature on the fardbeyan. The story narrated in the fardbeyan also stands testified by the statement of P.W. 9, Investigating Officer who has recorded the statement of these persons during investigation and deposed as such. Therefore we do not feed pursuaded to discard the testimony of P.W. 6 an eye-witness only on the ground that he is related and is solitary. It is well settled by the judgments of the Apex Court that if the testimony of a solitary eye-witness is reliable and trustworthy it can be relied upon to record conviction [See (2012) 1 SCC 10 , Para-49; Prithipal Singh and others Vs. State of Punjab and another]. However, we are conscious of the fact that this case involved a number of accused persons who had by forming an unlawful assembly committed the murder of the sole victim, Ravindra Giri in furtherance of the common object. State of Punjab and another]. However, we are conscious of the fact that this case involved a number of accused persons who had by forming an unlawful assembly committed the murder of the sole victim, Ravindra Giri in furtherance of the common object. Therefore, as observed in the foregoing paragraphs, we have applied the test approved in the case of Masalti Vrs. State of U.P (Supra) and exercised a note of caution while evaluating the prosecution evidence. We have found that the testimony of eyewitness P.W. 6 stands duly corroborated by P.W. 5 and also the medical evidence as noted above. Therefore we are of the considered view that the judgments relied upon by the learned Senior Counsel for the appellants in order to support this submission do not come to his aid in the facts and circumstances of this case. It is worthwhile to mention here that in a case of criminal trial even one fact makes a whole world of difference in the inference to be drawn on the basis of such evidence and the final outcome of the case. 23. Appellants have urged that the blood stained earth has not been produced during trial nor sent to the Forensic Science Laboratory. In absence thereof the prosecution story is incomplete and the place of occurrence has not been proved. We have referred to the statement of prosecution witnesses P.W.-5 Sheodayal Giri father of Ravindra Giri and P.W.-6 his brother and eye witness and also gone through the statement of P.W.-9 the investigating officer. On conjoint reading of their evidence we find that the place of occurrence as narrated in the fardbeyan have been duly proved by the prosecution. A mere lapse on the part of the Investigating Officer cannot have the effect of belying the entire prosecution story. The Investigating Officer has also stated during trial that the blood stained earth was seized and was to be sent to the Forensic Science Laboratory upon orders of the superior authority. A mere lapse on the part of the Investigating Officer cannot have the effect of belying the entire prosecution story. The Investigating Officer has also stated during trial that the blood stained earth was seized and was to be sent to the Forensic Science Laboratory upon orders of the superior authority. Therefore a mere non-sending of the blood stained earth to the Forensic Science Laboratory or its non-production during trial could not create a doubt about the place of occurrence when compared with the oral testimony of these prosecution witnesses about the commission of the offence by the accused members as part of the unlawful assembly at the place where Holika Dahan was being held i.e., a field North of Bus Dipo at Baridih Road [see: (1998) 6 SCC 50 ; State of U.P. Versus Harban Sahai & others para 11 and also (2003) 12 SCC 360; Surendra Paswan Versus State of Jharkhand para-9]. 24. Much emphasis has been laid by learned Senior counsel for the appellants on the statements of P.W. 9, Investigating Officer read alongwith that of P.W. 5 and P.W. 6 on the question whether the body of Ravindra Giri was carried to the hospital by a police jeep or not. In our opinion these are minor inconsistencies in the statement of the prosecution witnesses which are of no such relevance which could materially affect the core of the prosecution case. The Court is required to consider the prosecution on the basis of the entire material evidence of the prosecution witnesses. In this regard, reliance is placed in the case of State of Uttar Pradesh vs. Naresh and Others (2011) 4 SCC 324 , para 29 and 30 thereof is quoted hereunder: 29. A mere relationship cannot be a factor to affect credibility of a witness. The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives' evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the Court has to analyse the evidence of related witnesses carefully to find out whether it is cogent and credible. (Vide Jarnail Singh, Vishnu v. State of Rajasthan and Balraje). 30. In such a case the defence has to lay foundation if plea of false implication is made and the Court has to analyse the evidence of related witnesses carefully to find out whether it is cogent and credible. (Vide Jarnail Singh, Vishnu v. State of Rajasthan and Balraje). 30. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. "9. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility." Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. [Vide State v. Saravanan, Arumugam v. State, Mahendra Pratap Singh v. State of U.P. and Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra.].” The fact remains that the body of the deceased Ravindra Giri was carried to TMH Hospital and the fardbeyan was recorded at the emergency ward at 24 Hours. on 18.03.1992 itself just about ½ an hour also after the incidence. 25. We now proceed to deal with the contention of the appellant that the delay in sending the F.I.R. to the learned Magistrate has not been duly explained. on 18.03.1992 itself just about ½ an hour also after the incidence. 25. We now proceed to deal with the contention of the appellant that the delay in sending the F.I.R. to the learned Magistrate has not been duly explained. On this count we find that as per the fardbeyan itself, the incidence occurred on the night of Holika Dahan at 11.15 P.M. which is a full moon night. The fardbeyan was recorded at 24 Hours on 18.03.1992 at the T.M.H., Emergency Ward. The formal F.I.R. was instituted on 19.03.1992. The prosecution witnesses and investigating Officer P.W. 9 in his statement at paragraph- 16, has explained that the formal F.I.R. required certain entries to be made. As such it was sent to the court of learned Magistrate on 20.03.1992 which was a Friday. It needs to be mentioned here that the incidence occurred during a period when there was festival of Holi. The next intervening two days i.e. 21st March and 22nd March were Saturday and Sunday and therefore the F.I.R. was seen by the learned magistrate on 23.03.1992. We are of the view that P.W. 9 had been able to satisfactorily explain the circumstances on account of which there was a delay in seeing the F.I.R. by the Magistrate on 23.03.1992. In this regard, reliance is placed in the case of Jeewan and Others vs. State of Uttarakhand, (2012) 13 SCC 598, para-32 and 33 thereof, are quoted hereunder: 32. In Nagesh v. State of Karnataka the Court discussed various judgments of this Court and while noticing the principle that “letting the guilty escape is not doing justice according to law” held as under: (SCC pp. 485-86, paras 26-27) 26. The Court has to examine the evidence in its entirety, particularly, in the case of circumstantial evidence, the Court cannot just take one aspect of the entire evidence led in the case like delay in lodging the FIR in isolation of the other evidence placed on record and give undue advantage to the theory of benefit of doubt in favour of the accused. 27. This Court in Sucha Singh v. State of Punjab has stated: (SCC pp. 653-54, para 20) '20. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. 27. This Court in Sucha Singh v. State of Punjab has stated: (SCC pp. 653-54, para 20) '20. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh) The prosecution is not required to meet any and every hypothesis put forward by the accused. (See State of U.P. v. Ashok Kumar Srivastava.) A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some inevitable flaws because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh v. State (Delhi Admn.).] Vague hunches cannot take place of judicial evaluation. '17. … a Judge does not preside over a criminal trial, merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. ... Both are public duties....” [Per Viscount Simon in Stirland v. Director of Public Prosecutions quoted in State of U.P. v. Anil Singh (SCC p. 692, para 17).] Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.’” 33. In other cases, the Court has taken the view that mere delay in lodging the FIR may not prove fatal in all cases, but in given circumstances of a case, delay in lodging the FIR can be one of the factors which corrode the credibility of the prosecution version. Delay in lodging of the FIR cannot be a ground for throwing the entire prosecution case. In cases, where there is some delay in filing the FIR, the complainant must give explanation for the same. Delay in lodging of the FIR cannot be a ground for throwing the entire prosecution case. In cases, where there is some delay in filing the FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. (Ref. Bhajan Singh v. State of Haryana and Jitender Kumar v. State of Haryana, SCC p. 219, para 43.) We do not find that the delay, if any in the seeing the F.I.R. by the learned Magistrate had led to any concoction or embellishment in the prosecution story as the fardbeyan was recorded at 24 Hours on 18.03.1992 i.e. after about half an hour of the incidence. The testimony of prosecution witnesses P.W. 5, P.W. 6 and P.W. 9 in particular as discussed hereinabove do not persuade us to hold that the prosecution had added and concocted facts only to implicate these accused persons as a result of the delay. Prosecution witness number 5 and 6 both have in common vein stated that the reason for killing Ravindra Giri was a fight or a quarrel that took place between the deceased and the accused persons during the marriage of Brighu Lohar which was held on 11.03.1992, seven days before the occurrence. There was a grudge definitely borne by the accused persons against the Ravindra Giri (deceased) which was the motive behind commission of the offence. The motive for committing the offence was thus also proved by the prosecution. We are therefore unable to accept the contention of the appellants that the conviction of these appellants are based on conjunctures or surmises alone. As discussed hereinabove in sufficient detail, we are of the considered view that prosecution had been able to prove their case beyond shadow of all reasonable doubt. 26. In such circumstances, we are not inclined to accept the plea that the accused persons despite being a part of the unlawful assembly which committed the offence are liable to be given the benefit of doubt. Upon consideration of all these facts and circumstances and for the elaborate reasons discussed hereinabove we hereby uphold the conviction of these appellants and affirm the impugned judgment of conviction and order of sentence recorded by the learned trial court. 27. Appeals are accordingly dismissed. 28. The appellants who are on bail, the bail bond of the appellants are cancelled. Upon consideration of all these facts and circumstances and for the elaborate reasons discussed hereinabove we hereby uphold the conviction of these appellants and affirm the impugned judgment of conviction and order of sentence recorded by the learned trial court. 27. Appeals are accordingly dismissed. 28. The appellants who are on bail, the bail bond of the appellants are cancelled. They are directed to surrender before the learned court and serve the remaining part of the sentence. The appeals are accordingly dismissed. 29. Let the lower court record be sent to the court below.