JUDGMENT : Syed Aftab Husain Rizvi, J. 1. We have heard Sri I.K. Chaturvedi, learned Senior Counsel, assisted by Sri Vinod Kumar Tripathi and Ms Ruchita Jain, learned counsels for the appellants and Sri J.K. Upadhyaya, learned A.G.A. for the State. 2. This criminal appeal is directed against the judgment and order dated 06.12.2007 passed by Additional Sessions Judge/Special Judge (D.A.A. Act), Lalitpur in Sessions Trial No.13 of 1996 (State Versus Hanna and others) arising out of Case Crime No.862 of 1995 under Sections 302/149, 323/149, 147 and 148 I.P.C., Police Station Kotwali, District Lalitpur. By the impugned judgment and order, learned trial court has held appellants guilty for the offences punishable under Sections 302/149, 323/149, 148 and 147 I.P.C. and sentenced each of them to undergo imprisonment for life and fine of Rs.10,000/-and in default of payment of fine, two years’ additional rigorous imprisonment, under Section 302/149 I.P.C.; fine of Rs.500/-each, in default of payment of fine one month’s rigorous imprisonment, under Section 323/149 I.P.C.; fine of Rs.2,000/-each on appellant nos. 3 to 6 and in default of payment of fine, three months’ rigorous imprisonment, under Section 147 I.P.C., fine of Rs.4,000/-each under Section 148 I.P.C. on appellant nos. 1 and 2 coupled with a default sentence of six months’ rigorous imprisonment. 3. NARRATION OF FACTS: Complainant, Nanhi Bahu (PW-1) gave an application dated 05.10.1995 at Police Station Kotwali Lalitpur, District Lalitpur alleging therein that today, on 05.10.1995 at 6 a.m., her son Pappu alias Har Narayan was going to the west of the village to attend nature’s call, Hanna, holding Ballam (spear), Kappu holding an axe and Daya, Duli, Prakash and Babu holding lathis in their hands were present at the shop of Pragi. There was a family dispute of her son with them. With a common intention, they started to assault her son with the weapons in their hands and killed him. When she tried to save him, then Babu assaulted her with lathi, causing injuries on her left hand. The incident was witnessed by Raj Kumar (PW-2), Lakhan (PW6), Santosh (PW-5), Sanjai (PW-7), Devi (PW-8) and her son Santosh (PW3). They tried to rescue, but the accused, hurling abuses, escaped towards the river side. The dead body of her son was lying on the road, north of the village. The incident was witnessed by Raj Kumar (PW-2), Lakhan (PW6), Santosh (PW-5), Sanjai (PW-7), Devi (PW-8) and her son Santosh (PW3). They tried to rescue, but the accused, hurling abuses, escaped towards the river side. The dead body of her son was lying on the road, north of the village. A Chik Report No. 408 of 1995 under Sections 147, 148, 149, 302 and 323 I.P.C. was registered against six named accused on 05.10.1995 at 7.15 a.m. Station House Officer, Police Station Kotwali Lalitpur, B.B. Singh (PW-11) took up the investigation. He recorded the statement of the complainant and sent her for medical examination. Thereafter, he arrived at the spot and instructed Sub-Inspector, Shyamendra Singh to conduct inquest proceedings. The dead body was sent for the post mortem examination. He also collected blood-stained and plain concrete and prepared its memo. Thereafter, he recorded statements of other witnesses and on the indication of Santosh inspected the place of occurrence and prepared the site-plan. On 08.10.1995, he arrested the accused persons, recorded their statements in which they confessed their guilt and also disclosed that they have concealed weapons used in the crime in a field near Village Gaida. Thereafter, the Investigating Officer, accompanying police personnel and accused-persons, on the indication of accused reached near a field in Village Gaida in which no crop was sown and recovered one axe and five lathis, buried under the ground. He also prepared its memo. On account of transfer of S.H.O., B.B. Singh, further investigation was conducted by S.H.O., G.N. Pandey (PW-12). He recorded the statements of the remaining witnesses and after completion of the investigation submitted charge-sheet against accused on 19.11.1995. The axe was sent for forensic examination on 18.12.1995. After committal proceedings, trial court framed charges under Sections 302/149, 323/149 I.P.C. against all the accused. It also framed charges under Section 148 I.P.C. against accused, Hanna and Kappu and under Section 147 I.P.C against accused, Daya, Duli, Prakash and Babu. The accused pleaded not guilty and claimed for trial. The prosecution, in all, examined 13 witnesses in oral evidence while in documentary evidence 18 papers, Ext. Ka-1 to Ka-18, were produced. The statements of the accused under Section 313 Cr.P.C. were recorded and incriminating circumstances were put to them. It is stated by the accused that the statements of the witnesses are false and they have been implicated in aforesaid case due to enmity. Ka-1 to Ka-18, were produced. The statements of the accused under Section 313 Cr.P.C. were recorded and incriminating circumstances were put to them. It is stated by the accused that the statements of the witnesses are false and they have been implicated in aforesaid case due to enmity. No evidence either oral or documentary was produced in defence. Learned trial court, after hearing arguments of the parties, by the impugned judgment and order, held all the accused guilty for the offences under Sections 302/149, 323/149 I.P.C., accused Duli, Daya, Prakash and Babu for the offence under Section 147 I.P.C. and accused Hanna and Kappu for the offence under Section 148 I.P.C. and sentenced them as above. 4. Autopsy Report: Post mortem examination of deceased, Pappu alias Har Narayan, was conducted on 05.10.1995 at 4 p.m. External Examination : According to the autopsy report, the age of the deceased was 26 years. Body of the deceased was average built, rigor mortis present all over the body. No sign of decomposition of body, both eyes normal. Following Ante Mortem injuries were found on the body: 1. A stab wound 1.5 cm x 0.5 cm x 3.0 cm over left side face, 2.5cm below outer end of left eye, obliquely situated, shape like an eclipse, edges clean cut, angles sharp. 2. A stab wound 2 cm x 0.5 cm x 3.0 cm over left side, 2.5 cm in front of middle part of left ear, eclipse shape, edges clean cut. Both angles sharp, oblique. 3. Incised wound 2.5 cm x 1.0 cm x full thickness over middle part of left pinna, edges clean cut, both angles sharp. 4. Stab wound 2.5 cm x 1.0 cm x bone deep, left mastoid bone fractured over left mastoid area, edges clean cut. 5. Lacerated wound 2.5 cm x 1.0 cm x bone deep over middle part of left lower jaw, left mandible fractured. 6. Abrasion 2.0 cm x 0.5 cm over dorsal aspect of left wrist. 7. Abrasion 2.2 cm x 0.5 cm over posterior aspect of right shoulder. 8. 5. Lacerated wound 2.5 cm x 1.0 cm x bone deep over middle part of left lower jaw, left mandible fractured. 6. Abrasion 2.0 cm x 0.5 cm over dorsal aspect of left wrist. 7. Abrasion 2.2 cm x 0.5 cm over posterior aspect of right shoulder. 8. Five stab wounds 2.5 cm x 1.5 cm x 9.0 cm, 2.0 cm x 1.0 cm x 8.0 cm, 2.5 cm x 1.5 cm x 9 cm, 2.0 cm x 2.0 cm x 7.5 cm and 2.5 cm x 2.0 cm x 8.0 cm over anterio-medial aspect of middle part of right thigh, shape eclipse, edges clean cut, angles sharp, all obliquely situated. 9. Lacerated wound 2.0 cm x 1.0 cm, bone deep on anterio-medial aspect of middle part of right leg, shaft of right wrist fractured at wound site. 10. Abrasion 3.0 cm x 1.0 cm front aspect of right face. 11. Deformity upper 1/3 left leg with fracture shaft of left wrist and fistula. 12. Multiple contusions overlapping each other, 21.0 cm x 12.5 cm over outer post.lateral aspect on left side chest. Internal Examination : Depressed fracture of left mastoid bone with blood clot present outside membranes at fracture site, fracture of 3rd, 4th, 5th, 6th and 7th ribs on the left side of the chest, left pleura ruptured at two places, left thoracic cavity filled with one litre blood, left lung ruptured at two places, adjoining fracture of 5th and 6th ribs, both chambers of the heart were empty, left mandible was fractured, stomach was empty, small intestine contained gases and in large intestine faecal matter and gases were present. Liver, spleen and kidneys were pale. The cause of death was shock and haemorrhage as a result of antemortem injuries. Dr. R.P. Gupta, PW 9, has proved the autopsy report, Ext.Ka-5. The witness has stated that the death of the deceased was possible on 05.10.1995 at 6 a.m. and that injury nos. 1, 2, 4 and 8 may be caused from sharp edged weapon like Ballam, injury no.3 from axe, injury nos.5, 9, 11 and 12 from lathis and remaining injuries may come from friction. Injury of Nanhi Bahu, the complainant, was medically examined on 05.10.1995 at 10 a.m. at District Hospital, Lalitpur by Dr R.P. Gupta, PW 9. According to injury report, Ext.Ka-4, following injuries were present on her body: 1. Injury of Nanhi Bahu, the complainant, was medically examined on 05.10.1995 at 10 a.m. at District Hospital, Lalitpur by Dr R.P. Gupta, PW 9. According to injury report, Ext.Ka-4, following injuries were present on her body: 1. Contused swelling 9.0 cm x 6.0 cm over right wrist and lower part of right forearm, deformity present. Tenderness present. Red in colour., kept under observation. 2. A lacerated wound 2.0 cm x 0.5 cm x fasia deep over finger web in between right thumb and right index finger, fresh blood clot present 3. A contusion 14.0 cm x 2.0 cm over mid line of back at T7, T8 level obliquely situated, red in colour 4. A contusion 17.0 cm x 2.0 cm over lower part of posterior aspect of right side wrist, obliquely situated, red in colour The injury report has been proved by Dr. R.P. Gupta, PW 9. The witness stated that injury no.1 was kept under observation while injury nos. 2, 3 and 4 were simple in nature. All the injuries were fresh and were caused by some hard and blunt object like lathi. The witness has also stated that all the injuries may come on 05.10.1995 at 6 a.m. 5. Nanhi Bahu, PW 1, is the complainant and injured. In her examination-in-chief, the witness has stated that the name of her son was Har Narayan alias Pappu. He had irrigated the field of accused Kappu by his pump and Rs.6,000/ was due on him. One day before the incident, Vedi Hawan was to be performed at the house of Shanker who is Saaru (the husband of sister-in-law) of Kappu. Kappu had come to invite Har Narayan alias Pappu but her son abused Kappu and neither she, nor her son, Har Narayan went to the house of Kappu in Vedi Havan. In respect of the incident, she stated that her son was going to attend nature’s call. Her son was lying on the road not near kiosk of any one. Several persons were standing there. She did not notice whether he was injured or not. In her presence accused, Hanna with Ballam, Kappu with axe, Duli, Daya, Prakash and Babu with lathis did not assault her son near the shop of Pragi. Neither she nor her son Santosh tried to save him. He was already dead. Babu has not assaulted her with lathi. She did not notice whether he was injured or not. In her presence accused, Hanna with Ballam, Kappu with axe, Duli, Daya, Prakash and Babu with lathis did not assault her son near the shop of Pragi. Neither she nor her son Santosh tried to save him. He was already dead. Babu has not assaulted her with lathi. So this witness did not support the allegations of the F.I.R. in her examination-in-chief and was declared hostile. Later, this witness was recalled on her application and her statement was again recorded on 11.03.1999. In this statement, the witness stated that what she has stated earlier was because the accused had threatened her. After that statement, the police personnel threatened her as to why has she given a false statement. The witness then stated that Hanna holding Ballam, Kappu holding axe, Daya, Duli, Prakash and Babu holding lathis caught Pappu and they all assaulted him with the weapons in their hands. The incident has occurred in the middle of the road. The accused escaped towards the river side. Her son was killed while going to attend nature’s call. She had come to fetch water. After aforesaid statement, the witness was examined by the prosecution and her statement was recorded in question-answer form. In this statement, she has stated that three years have passed since the incident. It was about 6 a.m. Her son Pappu alias Har Narayan was going to attend the nature’s call. He reached on the road, Hanna was holding Ballam, Daya, Duli, Prakash and Babu were holding lathis while Kappu was holding an axe, they all assaulted Pappu alias Har Narayan with weapons they were holding in their hands. Har Narayan died. She tried to save her son, then Daya caught hold her and Babu assaulted her with lathi. Her daughter-in-law was watching the incident from a distance. She got scribed the report from Prakash Tiwari at Kotwali. Prakash Tiwari has written whatever she had dictated and thereafter read over the same to her. The witness has also stated that earlier she has given statement under threat of Shanker, Rama and Kappu. They have threatened that your one son has been killed and if she deposes against them, her other son will also be killed. Shanker is cousin of Kappu. The witness has also stated that earlier she has given statement under threat of Shanker, Rama and Kappu. They have threatened that your one son has been killed and if she deposes against them, her other son will also be killed. Shanker is cousin of Kappu. She stated that her previous statement was false and was given under threat whereas today, she is giving true statement without any pressure. 6. Santosh, PW 3, is the real brother of the deceased. In his examination-in-chief, the witness has stated that Pappu alias Har Narayan was his real brother. He was murdered about three years ago. It was 6 a.m. His brother was going to attend the nature’s call. On the way, at the shop of Pragi, accused, Hanna, Kappu, Daya, Prakash, Duli and Babu met him. Hanna was holding Ballam, Kappu an axe and the remaining accused had lathis. In front of the shop of Pragi, they encircled Pappu and started to assault him. He and his mother, on cries of his brother, arrived at the spot from his shop. They tried to rescue Pappu, but Babu assaulted his mother with lathi. When they tried to rescue him, accused threatened them. Raj Kumar, Lakhan, Santosh, Sanjai and Devi also arrived at the spot and they forbade the accused not to assault his brother. His brother died. In respect of location of his shop, PW-3 stated that his shop was at 4-5 paces from the place of occurrence. The witness has further stated that Kappu and Hanna are cousins. Prakash is real brother of Kappu. Daya and Duli are real brothers and cousin of Kappu while Babu is the Saaruof Kappu. Rs.6,000/-was due on Kappu which he did not return despite several demands. Earlier also, Kappu has committed marpeet with PW-3 and his brother (the deceased) on demand of money regarding which a case is pending in the court of Chief Judicial Magistrate. Due to aforesaid enmity, the accused committed murder of his brother. 7. Raj Kumar, PW 2, Santosh, PW 5, Lakhan Lal, PW 6, Sanjai, PW 7 and Devi, PW 8, the eye-witnesses have not supported the prosecution version and were declared hostile. In their examination-in-chief they have stated that they have not seen the incident. With the permission of court, the prosecution has conducted cross-examination of the aforesaid witnesses. 7. Raj Kumar, PW 2, Santosh, PW 5, Lakhan Lal, PW 6, Sanjai, PW 7 and Devi, PW 8, the eye-witnesses have not supported the prosecution version and were declared hostile. In their examination-in-chief they have stated that they have not seen the incident. With the permission of court, the prosecution has conducted cross-examination of the aforesaid witnesses. In their cross-examination, the witnesses have reiterated the statement given in the examination-in-chief that they have not seen the occurrence. They have also disowned their statements under Section 161 Cr.P.C. 8. Head Constable, Sarjoo Prasad, PW 4, is the chik and General Diary writer. The witness has stated that on 05.10.1995, on the written information of Nanhi Babu, he registered Case Crime No.862 of 1995 under Sections 147, 148, 149, 302 and 323 I.P.C. of Chik No.408 of 1995 and made General Diary entry of it. The witness has proved Chik F.I.R. and copy of general diary, Exts.Ka-2 and Ka-3. 9. Constable, Luvkush Kumar, PW 10, has proved inquest report and related paper which is in the writing of Sub Inspector, Shyamendra Singh by secondary evidence. These papers are Exts. Ka-6 to Ka-11. The witness has also stated that after inquest proceedings, body of the deceased was handed over to him for post mortem examination which he handed over to the doctor in a sealed condition. 10. B.B. Singh, PW 11, is the first Investigating Officer. The witness has stated that on 05.10.1995, he was posted as Station House Officer, Kotwali Lalitpur and the F.I.R. of this case was registered in his presence. He took up the investigation. Recorded statement of the complainant and sent her for medical examination. Thereafter, he with Sub Inspector, Shyamendra Singh and other police force arrived at the spot. Inquest proceeding was conducted by Sub Inspector, Shyamendra Singh, on his instructions. The dead body was sent for post mortem examination. The witness has further stated that he collected blood-stained and plain concrete from the place of occurrence and prepared its memo Ext. Ka-13. He recorded statement of other witnesses and on the pointing out of Santosh, brother of the deceased, inspected the place of occurrence and prepared its site-plan, Ext. Ka-14. The witness has further stated that on 08.10.1995, he arrested accused, Hanna, Kappu, Daya, Duli and Prakash and recorded their statements. Ka-13. He recorded statement of other witnesses and on the pointing out of Santosh, brother of the deceased, inspected the place of occurrence and prepared its site-plan, Ext. Ka-14. The witness has further stated that on 08.10.1995, he arrested accused, Hanna, Kappu, Daya, Duli and Prakash and recorded their statements. The accused confessed and disclosed that they have concealed the weapons used in the commission of the crime in a field near Village Gaida. He along with the police force and the accused came at Village Gaida and on the pointing out of the accused, from a field, which had no crop, recovered blood-stained axe and lathis buried under the ground. He prepared its memo, Ext. Ka-15. On the same day, he arrested accused, Babu. He also prepared site-plan of the place of recovery, Ext. Ka-16. The witness has also produced, the axe, lathis, bloodstained and plain concrete and clothes of the deceased which he was wearing at the time of the incident as Material Exts. Ka-1 to Ka-12. The witness has further stated that after that he was transferred. 11. G.N. Pandey, PW 12, is the second Investigating Officer. The witness has stated that after transfer of B.B.Singh, the then S.H.O, he took the investigation of this case on 19.10.1995. He recorded statements of inquest witnesses and after completion of investigation, submitted charge-sheet, Ext.Ka-17. The witness has also proved Forensic Lab report, Ext. Ka-18. 12. Constable, Ram Charan, PW 1, is also a formal witness. He has taken the case property to Forensic Science Laboratory, Agra for examination. SUBMISSIONS ON BEHALF OF THE APPELLANTS 13. Learned counsel for the appellants has contended that Smt. Nanhi Bahu, PW 1, complainant and Santosh, PW 3, claim themselves to be the eye-witnesses of the incident. In her first statement, Nanhi Bahu has not corroborated the allegations of F.I.R. and turned hostile. She has specifically stated that the accused persons did not assault her son Pappu with Ballam, axe and lathis in front of her. She has stated that neither she nor her son Santosh tried to rescue him because he was already dead. Later on, after examination of all the witnesses, she moved an application on which she was recalled and in that statement she completely resiled from her earlier statement and implicated the accused persons. She stated that now she is deposing as police has threatened her. Later on, after examination of all the witnesses, she moved an application on which she was recalled and in that statement she completely resiled from her earlier statement and implicated the accused persons. She stated that now she is deposing as police has threatened her. So, her subsequent statement is under threat of police. Learned counsel also contended that there are also serious infirmities and contradictions in her statement. At one place she has stated that at the time of the incident she and her son Santosh were taking water from hand-pump while at another place she has stated that she and her daughter-in-law were out to take water. No hand-pump is shown in the site-plan. She has stated that only one lathi blow on her left hand was inflicted. In the medical examination report, Ext.Ka-4, no injury on her left hand is mentioned. So, the testimony of this witness is wholly unreliable. It is further contended that presence of Santosh, PW 3, on the spot is highly doubtful. He had stated that at the time of incident he was at his shop (kiosk) which was 4 paces from the place of occurrence but in the site-plan no shop of witness, Santosh, has been shown. The witness has also stated that he has not indicated his shop at the time of inspection by the Investigating Officer. He has also stated that there was previous enmity with the accused persons and before the incident the accused persons had assaulted him and his deceased brother Pappu in respect of which a case is pending in the court of Chief Judicial Magistrate. If the witness was present on the spot, he would not have been spared. It is also highly improbable and unnatural that he would not make any effort to rescue his brother who was being beaten to death in front of him. He has not suffered any injury even a scratch in the incident, which also makes his presence on the spot highly doubtful. There are other infirmities and contradictions in his statements also. He has stated that near his shop, there is Imalitree but in the site-plan neither shop nor any Imali tree has been shown. He has not suffered any injury even a scratch in the incident, which also makes his presence on the spot highly doubtful. There are other infirmities and contradictions in his statements also. He has stated that near his shop, there is Imalitree but in the site-plan neither shop nor any Imali tree has been shown. At one place he has stated that at the time of incident, he was at his shop, his mother and sister-in-law (Bhabhi), Malti and other witnesses were also there whereas at another place he has stated that his mother and sister-in-law were at the hand-pump to fetch water. Changing his statement, he has further stated that when the accused persons came he was sitting at his shop while earlier he has stated that when the accused persons came he was opening his shop. He is not a witness of inquest. He has also not accompanied his mother to the police station. All the facts and circumstances make his presence at the spot highly doubtful. Learned counsel further contended that all other eye-witnesses, examined by the prosecution, have not supported the prosecution case and have turned hostile. It is further contended that alleged recovery of one axe and five lathis made by the Investigating Officer on 08.10.1995 on the pointing out of five accused persons is totally false and fabricated. No disclosure statement has been recorded. There is no public witness of the recovery. The memo of the recovery is neither signed by the accused nor copy of it has been provided to them. The recovery of one axe and five lathis are shown in the recovery memo while according to the prosecution case only four accused were armed with lathis. Forensic report does not confirm the use of aforesaid weapons in the commission of the offence. The origin of blood could not be ascertained in the Forensic test. Hence, this evidence adduced by the prosecution has no evidenciary value and it does not support the prosecution case in any way. Learned counsel for the appellants further contended that the incident is alleged to be of 6 a.m. The post mortem of the deceased was conducted on the same day, at 4 p.m. It is mentioned in the post mortem report that rigor mortis was present all over the body and estimated time of death is 12 hours. Learned counsel for the appellants further contended that the incident is alleged to be of 6 a.m. The post mortem of the deceased was conducted on the same day, at 4 p.m. It is mentioned in the post mortem report that rigor mortis was present all over the body and estimated time of death is 12 hours. Learned counsel submitted that rigor mortis spreads over the entire body after 12 hours of death. It suggests that the incident had occurred in the night or at wee hours of the morning, by some unknown miscreants and due to previous enmity the appellants have been falsely implicated. It is also contended that the F.I.R. has been scribed by Ram Prakash Tiwari at police station in the presence of S.O., so there are chances of false implication of the applicants. Learned counsel, lastly, contended that the learned trial court has erred in relying on oral testimony of Nanhi Bahu, PW 1 and Santosh, PW 3. The finding recorded by the lower court is erroneous and unjustified. There is no cogent evidence on record to prove the prosecution case and trial court has failed to properly appreciate the evidence on record and committed material illegality while believing the prosecution evidence. Hence, the finding of conviction and sentence recorded by the trial court cannot be sustained and is liable to be set aside. The appellants are liable to be acquitted. SUBMISSIONS ON BEHALF OF THE STATE 14. Learned A.G.A. contended that the prosecution has produced ocular version of the incident. Nanhi Bahu, PW 1, is the eye-witness. She is also injured. Her medical examination report has been proved, so her presence at the spot cannot be doubted. Merely because in her first statement she turned hostile and did not support the prosecution case, her oral testimony cannot be discarded. From her oral testimony it is established that threat was extended to her from the appellants’ side and under that threat she turned hostile and did not support the prosecution case. It has come in her statement that she was threatened that if she deposes against the accused-appellants, then her other son will also be killed. Her subsequent statement is not under pressure or threat of the police. She has stated that police asked her as to why has she given a false statement. This clearly establishes that her previous statement was not true. Her subsequent statement is not under pressure or threat of the police. She has stated that police asked her as to why has she given a false statement. This clearly establishes that her previous statement was not true. In her subsequent statement she has clearly stated that her son was assaulted by the accused who were armed with Ballam, axe and lathis and when she tried to rescue her son she was also assaulted with lathi. Learned A.G.A. also contended that Santosh, PW 3, is the eye-witness and he has also fully corroborated the prosecution case. Omission by the Investigating Officer in not showing hand-pump and Kiosk of witness is laches on his part, on account of which, the ocular testimony of the witness cannot be disbelieved. The witness has also explained that when he tried to save his brother, then accused-persons wielding their weapons pushed him away that is why he has not suffered any injury in this incident which also cannot be a ground to disbelieve him. There may be some discrepancy and contradiction in the oral testimony of the witnesses which are natural as the witnesses are illiterate and rustic villagers. Oral testimony of the eye-witnesses stands corroborated from the medical evidence on record. Learned A.G.A. also contended that in the post mortem report the estimated time of death is 12 hours. This time may have variance of four hours on either side, so on this ground, the time of the incident cannot be doubted. Learned trial court has rightly relied on ocular testimony of PW 1, Nanhi Babu and PW 3 Santosh. There is no sufficient ground to discard their testimony. Learned A.G.A. submitted that even if the evidence of recovery of weapons is discarded, there is sufficient evidence in the form of ocular testimony to prove the prosecution case. The F.I.R. has been lodged promptly at 7.15 a.m. So, there is no chance of false implication of the accused by way of consultation. All the accused are named in it with specific averment about weapons used by them which stands corroborated from the oral as well as medical evidence There is no illegality or infirmity in the findings of the learned trial court. ANALYSIS : 15. The prosecution has relied on ocular version. Seven eye-witnesses have been examined by the prosecution. All the accused are named in it with specific averment about weapons used by them which stands corroborated from the oral as well as medical evidence There is no illegality or infirmity in the findings of the learned trial court. ANALYSIS : 15. The prosecution has relied on ocular version. Seven eye-witnesses have been examined by the prosecution. Except complainant, Nanhi Bahu, PW 1 and Santosh, PW 3, the brother of the deceased, all other eyewitnesses turned hostile. Complainant, Nanhi Bahu, PW 1, is also the mother of the deceased. In her examination-in-chief, the witness has only corroborated the motive. She has stated that her son Pappu alias Har Narayan had irrigated the field of accused, Kappu, of which Rs.6,000/-was due on him. Due to this, the relations of her son with accused were sour. She also stated that a day before the incident accused, Kappu has come to invite her son for VediHawan, on which her son abused Kappu. In her first statement, the witness has not supported the prosecution case that in front of her, accused, Hanna with ballam, Kappu with axe and Daya, Duli, Prakash and Babu with lathis assaulted Pappu alias Har Narayan and that she and her son Santosh tried to save him; she also stated that neither Babu assaulted her nor did she try to rescue Pappu alias Har Narayan. In the cross-examination conducted by the prosecution, the witness has admitted that her medical examination was conducted at District Hospital. She has also stated that her son has left the house in front of her. At that time, she and her son, Santosh were drawing water from the handpump. She has also stated that her son was lying four paces from the handpump. The witness has disowned her statement recorded under Section 161 Cr.P.C. She has also denied the suggestion of prosecution with regard to the incident. Thereafter, on 05.02.1999 the witness moved an application before the trial court alleging therein that she has witnessed the incident and she was also assaulted by the accused and suffered injuries in the incident. She had lodged the report and had also given statement to the Investigating Officer, which is true. She also stated that earlier she has given statement in the court under the threat of accused-persons and now she wishes to depose correct facts before the court. She had lodged the report and had also given statement to the Investigating Officer, which is true. She also stated that earlier she has given statement in the court under the threat of accused-persons and now she wishes to depose correct facts before the court. On the aforesaid application, the witness was recalled by the trial court. Her statement was again recorded on 11.03.1999. In this statement, she has stated that she was threatened and due to this reason she has given earlier statement. Thereafter the police threatened her as to why has she given a false statement. Now, she has come to depose again. The witness was asked to depose, whatever, she wanted. Then the witness has stated that Hanna, holding Ballam, Kappu holding an axe and Daya, Duli, Prakash and Babu, holding lathis, assaulted her son when he had gone to attend the call of nature. She with her daughter-in-law had come to fetch water. The witness was examined by the prosecution again in question-answer form. In this statement she has clearly stated that her son was assaulted by the accused and when she tried to rescue, she was also assaulted with lathi. She has also stated that on the previous occasion she has given statement under threat of Shankar, Rama and Kappu. She was threatened that her one son has died and if she deposes against the accused, her second son will also be killed. She has also stated that Rama is the son of the uncle (Kaka) of accused Kappu. Shankar is cousin of Kappu. She has also stated that today, she is deposing true facts before the court and no one has threatened her for deposing. In cross-examination, conducted by the defence counsel, the witness had stated that she came by tractor to lodge the report at the police station. Tiwariji was with her. Tiwariji scribed the report at the police station, where Sub Inspector was sitting and had written whatever, she stated. The report was handed over to the Sub Inspector and she went to the hospital with a policeman. The witness has denied the suggestion of defence that she has not witnessed the incident and report was not scribed on her dictation by Ram Prakash Tiwari. The witness has not been cross-examined by the defence on the material facts regarding the incident. So, her aforesaid statement is intact. The witness has denied the suggestion of defence that she has not witnessed the incident and report was not scribed on her dictation by Ram Prakash Tiwari. The witness has not been cross-examined by the defence on the material facts regarding the incident. So, her aforesaid statement is intact. Nanhi Bahu, PW 1, is also injured. Her medico-legal examination report, Ext. Ka-4, has been proved by Dr R.P. Gupta, PW 9.Three contusions and one lacerated wound have been found on different parts of her body. Medico-legal examination was conducted on the day of the incident at 10 a.m. and duration of injuries was fresh. The witness has stated that when she tried to rescue her son, she was assaulted with lathi. The doctor has accepted the suggestion put by the prosecution that injuries may come on 05.10.1995 at 6 a.m. So, medical evidence further corroborates that the witness has suffered injuries at the time of incident which establishes her presence on the spot at the time of incident. There is no specific statement that only one lathi blow was inflicted on her. The witness has stated that when she tried to rescue her son, she was assaulted with lathi. It is correct that the witness has stated that lathi blow was inflicted on her left hand while injury nos.1 and 2 are on right hand and there is no injury on the left hand. While appreciating the oral statement of this witness it should be kept in mind that her son was beaten to death in front of her, so, it is not expected from her to disclose exactly what injuries were inflicted upon her. Further, the statement has been recorded after a gap of more than two years from the date of incident, hence some contradictions are natural and on this ground her oral testimony cannot be disbelieved. The witness, being injured, her presence at the spot cannot be doubted. Further, the statement has been recorded after a gap of more than two years from the date of incident, hence some contradictions are natural and on this ground her oral testimony cannot be disbelieved. The witness, being injured, her presence at the spot cannot be doubted. The Apex Court in Abdul Sayeed Versus State of Madhya Pradesh (2010) 10 SCC 259 has held that, “Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone” In Bhagwan Jagannath Markad Versus State of Maharashtra (2016)10 SCC 537 and State of Haryana Versus Krishnan, AIR 2017 SC 3125 , it has been laid down that the testimony of an injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies. The reason for attaching such sanctity to the evidence of an injured witness is that his presence at the scene of crime stands established. Complainant, Nanhi Bahu, PW 1, has explained the circumstances under which her previous statement was recorded. She has also explained circumstances under which she has come to depose before the court again. Her statement that she was threatened by the police as to why has she given false statement does not indicate that her subsequent statement is a result of police threat and therefore false, rather it establishes that her earlier statement was not based on true facts. The aforesaid statement only indicates that the police asked her as to why has she given false statement before the court. The rule for appreciation of statement of a witness is that the statement is to be read as whole and then any inference can be drawn. If the statement of this witness is read as a whole, then her subsequent statement inspires confidence. 16. The other witness Santosh, PW 3, has also supported the prosecution case. It is correct that this witness is the real brother of the deceased, hence an interested witness. It is also correct that there are some discrepancies and contradictions in his statements. 16. The other witness Santosh, PW 3, has also supported the prosecution case. It is correct that this witness is the real brother of the deceased, hence an interested witness. It is also correct that there are some discrepancies and contradictions in his statements. He has stated that his brother was killed four paces from his shop. In the site-plan, the Investigating Officer has not shown the shop of the witness. The witness has also stated that his mother and sister-in-law (Bhabhi) had come to draw water from the hand-pump and the hand-pump is 3-4 paces from the place of occurrence but no hand-pump is shown in the site-plan. The witness has admitted that he has not shown his shop (kiosk) to the Investigating Officer at the time of inspection of the place of occurrence. The contradictions and discrepancies as pointed by the learned counsel for the appellants are not on material points i.e. the time, place of occurrence and manner of assault, which stands corroborated from his oral testimony. The witness has accompanied his mother to the police station at the time of lodging of the F.I.R. and his presence is noted in General Diary. His statement has also been recorded by the Investigating Officer on the day of the incident after the registration of the F.I.R. General contradictions, inconsistencies, exaggerations and embellishments are seen in the oral testimony of a witness. If there are no material contradictions, his evidence cannot be disbelieved. In Bhagwan Singh Versus State of Madhya Pradesh, AIR 2009 SC 768 , the Hon’ble Apex Court has observed that there may be cases when two witnesses make contradictory statements on the same facts. When case of the prosecution is based on the evidence of eyewitnesses, some embellishments in the prosecution case caused by the testimony of any prosecution witness, not declared hostile, cannot by itself be a ground to discard entire prosecution case. The testimony of the witness also cannot be disbelieved merely on the ground that he has not suffered any injury in the incident and he did not react in a manner, he ought to have reacted in the circumstance or he did not come to the rescue of the deceased. Behaviour or manner of response to a particular situation varies from person to person. Some persons may be very strong hearted while some may be sensitive and emotional. Behaviour or manner of response to a particular situation varies from person to person. Some persons may be very strong hearted while some may be sensitive and emotional. Some may get terrorised by looking at the deadly attack on a person and may find themselves shocked, unable to react or respond to the situation. Therefore, such behaviour or conduct of witnesses should not be taken as a ground to discard their otherwise credible testimonies. In Sucha Singh Versus State of Punjab (2003) 7 SCC 643 , the Apex Court has held that when eye-witnesses did not come to the rescue of the deceased, such reaction or conduct of a witness cannot be a ground to discard their evidence particularly, when they are unarmed and accused are armed with deadly weapons. 17. Raj Kumar, PW 2, although has turned hostile but the witness has corroborated the time and place of the occurrence in his examination-in-chief. This witness has stated that incident is of 6-7 a.m. He saw that Pappu alias Har Narayan was lying dead on the road. He has also stated about the presence of the accused, Babu and stated that Babu was at the shop of Pragi. In his cross-examination also the witness has stated that when he reached there, Babu was sitting at the shop of Pragi. The witness has also admitted his statement recorded under Section 161 Cr.P.C. The witness has stated that the Investigating Officer interrogated him and he has told him that at 6 a.m. the accused assaulted Pappu alias Har Narayan with Ballam, axe and lathis. Although he has further stated that as other persons were telling this to the Investigating Officer, so he also told this to I.O. It is settled law that the evidence of a hostile witness cannot be rejected outrightly and such part of the evidence which assists any of the parties may be relied on by that party. 18. The autopsy report also supports ocular version. According to the autopsy report, the deceased has received 12 injuries. Injury nos.1, 2, 4 and 8 are stab wounds, injury no.3, an incised wound and injury nos.5 and 9 are lacerated wounds while remaining injuries are abrasions. The autopsy surgeon, Dr. R.P. Gupta, PW 9, has stated that injury nos. 18. The autopsy report also supports ocular version. According to the autopsy report, the deceased has received 12 injuries. Injury nos.1, 2, 4 and 8 are stab wounds, injury no.3, an incised wound and injury nos.5 and 9 are lacerated wounds while remaining injuries are abrasions. The autopsy surgeon, Dr. R.P. Gupta, PW 9, has stated that injury nos. 1, 2, 4 and 8 were possible from Ballam while injury no.3 from axe and remaining injuries from lathis and friction and they might have been caused on 05.10.1995 at 6 a.m. So, the medical evidence corroborates the ocular version. 19. The place of occurrence is fully established from the prosecution evidence and there is no doubt about it. The deadbody has been found on the road and the Investigating Officer has collected plain and blood-stained concrete from there. The prosecution case about the time of incident is also consistent. Nanhi Bahu, PW 1, in her statement, has corroborated the allegations of F.I.R. that the incident has occurred at 6 a.m. The other eyewitness, Santosh, PW 3, has also corroborated it. The post mortem of the deceased was conducted on the day of the incident at 4 p.m. and duration of death is mentioned as about half day (12 hours). In the autopsy report the estimated time of death is mentioned on the basis of signs present on the body, particularly rigor mortis. There may be variance of 2 to 4 hours in the estimated time of death. So, from the autopsy report it cannot be ruled out that the incident may not have occurred at 6 a.m. as alleged by the prosecution. The autopsy surgeon, Dr R.P.Gupta, PW 9, has given opinion that the death of the deceased was possible on 05.10.1995 at 6 a.m. So, it cannot be said that there is any discrepancy in the prosecution evidence with regard to the time of the incident. There is no reason to doubt or disbelieve the ocular version in this respect. The contention of the learned counsel for the appellants that as post mortem has been conducted at 4 p.m. and duration of death is recorded as about half day, the incident might have occurred in the night or wee hours of the morning cannot be accepted. 20. The prosecution has also produced the evidence of the recovery of weapons used in commission of crime. 20. The prosecution has also produced the evidence of the recovery of weapons used in commission of crime. B.B. Singh, PW 11, the Investigating Officer is the only witness of this fact. This prosecution evidence is not cogent and submissions made by the learned counsel for the appellants in this regard are tenable. No reliance can be placed on this evidence and it is not taken into consideration. 21. From ocular testimony of Nanhi Bahu, PW 1 and Santosh, PW 3, the prosecution case stands proved. Oral testimony is supported with the medical evidence. Nanhi Bahu, PW 1, is also the injured witness. So, her presence at the spot cannot be doubted. Even if the oral testimony of Santosh, PW 3, the other eye-witness is disbelieved, the oral testimony of complainant, Nanhi Bahu, PW 1, the injured witness in itself is sufficient to prove the prosecution evidence as her testimony stands corroborated from medical evidence. There is no material contradiction in her statement regarding date, time, place of occurrence and manner of assault, etc. 22. Learned trial court has properly appreciated the evidence on record. There is no illegality or infirmity in the finding of the learned trial court. From the prosecution evidence it is proved that the appellants-accused, forming an unlawful assembly, armed with deadly weapons, in furtherance of their common object, assaulted Pappu alias Har Narayan, causing his death at the spot. So, the charges framed against them stand fully proved. Learned trial court has not committed any error in holding them guilty. The sentence imposed by the learned trial court is also appropriate. There is no illegality or perversity in the finding recorded by the learned trial court. There is no ground to interfere in the finding recorded by the learned trial court. The appeal is liable to be dismissed. 23. The criminal appeal is, accordingly, dismissed. Appellant no.1, Hanna is in jail. Appellant nos. 2 to 6, namely, Kappu, Daya, Tuli, Prakash and Pappu are on bail. Their bail bonds and surety bonds are cancelled. The sureties are discharged. They shall surrender before the court below within two weeks to serve out the remaining sentence, failing which the trial court will take appropriate steps for compliance. 24. The lower court record along with copy of the judgment shall be transmitted to the trial court immediately.