1. The present appeal has been preferred by the appellant who is the son of the deceased Shivkumar Pati Tiwari under proviso to Section 372 of the Code of Criminal Procedure (in short ‘Cr. P.C’) for setting aside the judgment dated 17.09.2013 passed by learned Adhoc Additional District and sessions judge III, Siwan, in Sessions Trial no. 32 of 1993, G.R. No. 1628 of 1991, arising out of Ashaon Police station Case No. 42 of 1991 dated 25.07.1991 whereby and whereunder respondent no. 2 to 5 have been acquitted of the charges under Sections 147, 148, 302/34, 201, 323, 324, 325, 307 of Indian Penal Code ( in short ‘IPC’).

2. This Court heard this appeal on 21.04.2014 and dismissed it.

3. Being aggrieved by the order of dismissal of appeal dated 21.04.2014, the appellant filed an appeal before the Hon’ble Supreme Court in Cr. Appeal no 825 of 2017 in SLP (CRL) no. 8717 of 2014. The Hon’ble Supreme Court vide its judgment dated 01.05.2017 set aside the judgment of this Court and remanded the case to the High Court for hearing the appeal on merit afresh in accordance with law.

Prosecution story

4. The prosecution story is based on the fardbeyan of Uma Pati Tiwari (PW-3) recorded recorded by A. A. Khan A.S.I of Town Police Station, Siwan on 25.07.1991 at 1 P.M. in Sadar Hospital, Siwan alleging that on 24.07.1991 at about 9:00 PM the informant (PW-3) along with his younger brother Ram Tapasya Pati Tiwari (PW-1) and nephew Shivkumar Pati Tiwari, Advocate (the deceased) as also Thakur Harijan (PW-7) were talking with each other at the bathan situated at village Kashidatt Diyara. At that time, Ram Naresh Chaudhary with gun, Sukhraj Mallah with gun, Janardan Ahir with lathi, Chandeshwar Kurmi with Gun, Anil Singh with gun, Balinder Ahir with lathi, Naga Bhar with lathi and Dwarika Chaudhary with lathi who had formed an unlawful assembly came there from southern side and attacked on them. Janardan Ahir and Balinder Ahir hit 4-5 times on the right hand of the informant with lathi and Sukhraj Mallah fired gun shot on Ram Tapsya Pati Tiwari. Ram Naresh Chaudhary, Anil Singh and Sukhraj Mallah fired bullets from gun on Shivkumar Pati Tiwari, Advocate. The informant and the people with him fell down being injured. Shivkumar Pati Tiwari died and the accused persons fled away with his dead body towards south. The informant (PW-3) received injuries on his right hand and back. Ram Tapasya Pati Tiwari (PW-1) received injury by gunshot on his left eye, ear and nose. The incident was seen by villager Hirdya Narayan Tiwari, Ramji Tiwari and others. The cause of incident was that some days ago the accused persons had cut and stolen away the barbed wire of the field and bathan of the informant upon which, they were scolded. The informant further stated that he has identified the accused persons in moonlit night and torch light. The injured persons were admitted at Sadar Hospital Siwan for treatment. On the basis of aforesaid fardbeyan the formal FIR was drawn on 25.07.1991 at 6:00 pm bearing Assaon Police Station Case No. 42 of 1991 under Sections 147, 148, 149, 302, 201, 307, 323 IPC and 27 of the Arms Act against 8 accused persons.

5. After investigation the I.O. submitted chargesheet no. 32/91 on 21.10.1991 against Ram Naresh Chaudhary and Balinder Ahir showing them in custody. Anil Singh, Sukhraj Mallah, Chandeshwar Kurmi, Janardan Ahir, Naga Bhar and Dwarika Chaudhary were shown absconder and later on supplementary chargesheet no. 3 of 1992 was submitted against Anil Singh and Naga Bhar showing them in custody.

6. After cognizance on 17.09.1992, the trial of three accused Sukhraj Mallah, Chandeshwar Ahir and Dwarika Chaudhary was separated. Thereafter the trial of Naga Bhar was also separated on 01.03.2006 and after commitment on the basis of main chargesheet Trial no. 32 of 1993 was registered and on the basis of supplementary chargesheet Sessions Trial No. 76 of 1993 was registered. Vide order dated 30.04.1993 both the trials were amalgamated.

7. On behalf of the prosecution altogether 13 witnesses were examined, they are:-

"P.W. 1-Ram Tapsya Tiwari (Brother of Informant)

P.W. 2- Suresh Rai (Formal witness)

P.W. 3- Uma Pati Tiwari (Informant)

P.W. 4- Dr. Ramji Chaudhary

P.W. 5- Bibhash Prasad Singh (Treated the injured)

P.W. 6- Ramaji Choudhary (Hostile witness)

P.W. 7- Thakur Harijan (Servant)

P.W. 8- Phuleshwar Bhar (witness of seizure list)

P.W. 9- Raghunath Mahto (submitted supplementary chargesheet )

P.W. 10- Nandlal Yadav

P.W. 11- Jagdish Narayan Prasad (I.O)

P.W. 12- Nemdhari Mallah

P.W. 13- Altaf Ali Khan (A.S.I. who recorded the fardbeyan)"

8. Following documentary evidences have been brought on record by the prosecution:-

"Ext. 1-Fardbeyan.

Ext. 2 -Bed-Head-Ticket of injured Ram Tapasya Tiwari. Ext. 3-Injury report of Umapati Tiwari.

Ext. 4-Registration in outdoor register of injured Ram Tapasya Tiwari.

Ext. 5-Bed-Head-Ticket of injured Umapati Tiwari Ext. 6-

Ext. 7-Registration in outdoor register of injured Umapati Tiwari.

Ext. 8- Bed-Head-Ticket

Ext. 9-Sign of witness on seizure list."

Findings of the learned trial court

9. The learned trial court having analysed the deposition of thirteen prosecution witnesses held that Mahendra Pandey, the Officer-in-Charge, reached Kashidatt Diyara with Mahal Chowkidar and the Investigating Officer (PW-11) at the bathan of Shivkumar Pati Tiwari at 12:00 noon, he had taken statement of the witness Phuleshwar Bhar (PW-8) and had started investigation on that basis. No FIR had been lodged on the basis of sanha no. 393 though there was an information of commission of a cognizable offence and on this basis, the investigation had started and police reached at bathan where the statement of PW-8 was taken but again no FIR was lodged on this basis.

10. Learned trial court found that after some significant work done towards investigation when the Officer-in-Charge and the I.O. (PW-11) returned to the police station in the evening at 6 P.M. then they received the fardbeyan of Umapati Tiwari (informant) from Town Police Station. On the basis of this fardbeyan, the FIR was lodged. The learned trial court held that, that was not the first information of the occurrence, therefore, in terms of section 162 of Cr.P.C. it is not admissible in evidence.

11. The learned trial court has found that Phuleshwar Bhar (PW-8) stated that he was present at bathan in Kashidatt Diyara and had admitted that a murder had taken place but in his presence, police had not seized any material. He had not seen the blood stained lathi and three empty cartridges. PW-8 has been declared hostile.

12. The learned trial court proceeded to consider as to when, for the first time, the name of the accused persons transpired in connection with this case. After analyzing the evidence of the I.O., (PW-14) the court held that labourers who were present at the bathan had not disclosed the name of the accused persons to the I.O. The informant himself stated that for the whole night, he and his brother (PW-1) remained at the bathan, there was no talk with each other and during the night hours nobody came. Phulshwar Bhar (PW-8) had met them in the morning but he had not disclosed the name of the assailants.

13. The learned trial court ultimately found that prior to the fardbeyan of the informant, he had not mentioned the name of the accused persons to anyone. The court, therefore, held that the FIR seems to be based on suspicion.

Submissions on behalf of the appellant

14. Mr. Vindhya Keshari Kumar, learned Senior Counsel has submitted that apart from raising doubt over the basis of the FIR, the learned trial court has acquitted the accused persons mainly on the following grounds:-

"i. There is no source of identification at the ‘bathan’ and nothing has been stated about it in the fardebyan;

ii. As per the fardebyan, the informant, his brother and the deceased Shivkumar Pati Tiwari who was a practicing Advocate in Siwan Court were said to be sitting at the ‘bathan’ on a ‘chowki’. As per PW-3, the accused persons had surrounded them and started firing, the deceased suffered firearm injury but the persons sitting there did not get any firearm injury, though, as per the prosecution witnesses, firing was taking place from three sides and the deceased was sitting in the middle with PW-1 and PW-3, which creates a doubt about the manner of occurrence, the prosecution version is not tallying in course of trial;

iii. There is no eye witness;

iv. There is no independent witness;

v. No motive seems to be present against the accused persons; and

vi. According to the medical evidences of PW-4, PW-1 and PW-3 had not suffered any firearm injury and the injury suffered by PW-3 may be caused due to fall."

15. Learned Senior Counsel for the appellant submits that in this case the prosecution has proved that there were three persons at the ‘bathan’. PW-1 and PW-3 are eye witnesses to the occurrence and they are injured witnesses, therefore, their testimonies must be relied upon. According to him, the defence could not take any contradiction in the statement of these two witnesses. Learned Senior Counsel submits that in the case of Haalesh @ Haleshi @ Kurubara Haleshi versus State of Karnataka passed in Criminal Appeal No. 1954/12 and Criminal Appeal No. 1955 of 2012 and Criminal Appeal No. 1303 of 2014, in the case of Bikkar Singh v. State of Punjab reported in AIR 1989 SC 440 and in the case of Adya Singh v. State of Bihar reported in AIR 1998 SC 3011, the Hon’ble Supreme Court has categorically held that conviction may be done on the basis of two witnesses who were present inside the premises where the occurrence had taken place.

16. Learned Senior Counsel has submitted that so far as the medical evidence of the Dr. Ramji Choudhary (PW-4) is concerned, he has stated that he had examined Umapati Tiwari (the informant). Doctor found that the injury on his body was caused by a hard blunt substance and the same was grievous in nature. He has stated that there was only one injury on Umapati Tiwari. Learned Senior Counsel submits that this doctor (PW-4) seems to be helping the accused.

17. Learned Senior Counsel has further taken this Court through the evidence of another doctor (PW-5) who was posted in Sadar Hospital and had treated PW-1 and PW-3. It is submitted that their evidences have not been properly appreciated by the learned trial court as both the doctors i.e. PW-4 and PW-5 clearly suggested that PW-1 and PW-3 were injured.

18. It is his further submission that the learned trial court failed to appreciate that the first information report was rightly registered on the basis of the fardebyan lodged by the informant as the Sanha registered in the Station Diary was only the information in respect of the occurrence on the basis of which police visited the place of occurrence to enquire the occurrence and later on, the first information report was registered on the basis of the fardebyan of the informant. It is his submission that the prosecution witnesses are quite consistent in naming the accused persons all along during the investigation till trial.

Submissions on behalf of the respondent nos. 2, 3 and 5

19. Learned counsel for the State as well as learned counsel for respondent nos. 2, 3 and 5 have taken this Court through the findings recorded by the learned trial court in paragraph ‘7’ of the impugned judgment. It has been submitted that no FIR was lodged on the basis of Sanha, even as Police visited the place of occurrence and took statement of Phuleshwar Bhar (PW-8) and had started the investigation but no FIR was lodged on the basis of statement of PW-8. The time of occurrence is not getting corroborated from the time mentioned by the doctors in the injury report.

20. Learned counsel further submitted that according to PW-8, the I.O. had not seized any blood stained lathi and empty cartridge. He has stated that Umapati Tiwari had not disclosed him the name of the miscreants.

21. Learned counsel submitted that according to the farebeyan, Sukhraj had fired upon Ram Tapasya Tiwari. (PW-1) but his injury report does not corroborate ocular evidence and completely rules out the prosecution story. Submission is that if the prosecution witnesses are not credible witnesses and they are not wholly reliable and apart from that the injury report is also not corroborating the prosecution story, it would not be safe to convict the answering respondents.

22. Learned counsel has taken this Court through the deposition of I.O. (PW-11) in paragraphs ‘29’ and ‘32’ where he has stated that in their statement Phuleshwar Bhar (PW-8) and Thakur Harizan (PW-7) both had stated about only four persons. Thakur Harizan (PW-7) has stated that he had seen the four criminals coming but he had not identified them.

23. Learned counsel has pointed out that according to the prosecution, the motive behind the occurrence is that the accused Balindra Ahir and Janardan Ahir had stealthily cut away the barbed wire put by the informant for boundary of his land. When the informant got to know this, he had called them and scolded them. The trial court has held that there is no eye witness to this occurrence and it seems difficult to believe that for this reason, eight accused persons would commit such a serious crime.

24. It is the defence of the answering respondents that the brother-in-law (bahnoi) of the deceased Shivkumar Pati Tiwari was a big Zamindar and he was a criminal, he usurped the land of number of persons, the deceased was doing pairvi of the case of his brother-in-law namely Daroga Mishra and for this reason, he had made a lot of enemies. It has come in evidence that the deceased had increased his holding of land during his period in diyara and he had got amalgamated the land of other persons also. It has also been the defence that the deceased was scolding people if any loss is caused to him due to anyone and he used to beat them by tying them and he was also imposing fine on them. The defence suggested PW-3 that in Patar Bomb Dacoity occurrence three dacoits were killed in the firing by Police in which one Bali Mishra, who is the relative of Dargoa Mishra, had been killed. Daroga Mishra had enmity for this reason with Anil Singh as he thought that Anil Singh and others had helped Police. Daroga Mishra had got killed the brother of Anil Singh and it is for this reason that at the instance of Daroga Mishra, Anil Singh was named in this case. The learned trial court has held that this defence cannot be said to be unnatural and the probability of false implication cannot be denied. It has been pointed out from paragraph ‘18’ of the deposition of I.O. (PW-11) that SDPO had recorded in his supervision note that Daroga Mishra, who was brother-in-law of the deceased, was a person of criminal nature and had criminal antecedent of several cases. It is submitted that the learned trial court has rightly concluded that the prosecution has failed to prove the guilt of the accused persons beyond all reasonable doubts.

Consideration

25. We have heard learned counsel for the appellant and learned counsel for the respondent nos. 2, 3 and 5 (respondent no.4 had already died) and learned APP for the State.

26. In the present case the occurrence took place at the bathan situated in Kashidatt Diyara on 24.07.1991 at about 9:00 P.M. (night hours). It is stated that at the time of occurrence Umapati Tiwari (informant and PW-3 who is the uncle of the deceased), Ram Tapasya Tiwari (PW-1, the brother of the informant and father of the deceased) Shivkumar Pati Tiwari, Advocate (deceased) and Thakur Harijan (PW-7) were sitting on a chouki (wooden cot). It is stated that altogether ‘8’ named accused persons who had formed unlawful assembly reached there from southern side. The informant was assaulted by Janardan Ahir and Balindar Ahir 4-5 times by lathi on his hand. It is stated that Ram Tapasya Tiwari (PW-1) was shot at by Sukhraj Mallah who was carrying a gun. According to the informant, the accused Ram Naresh Choudhary, Anil Singh and Sukhraj Mallah fired at Shivkumar Pati Tiwari (deceased) and the accused persons took away the dead body of the deceased. The informant claimed that he had suffered injury on his right hand, back side whereas Ram Tapasya Tiwari had suffered fire-arm injury at the left side of his eye, left side of his ear and on the nose. The informant claimed that the occurrence was seen by the villager Hirdyanand Tiwari, Ramji Tiwari and others. He identified the accused persons in the moonlit night and in the light of the torch.

27. It appears from the records that the Sub-Inspector of Police A. A. Khan (not examined) has recorded the fardbeyan of PW-3 at Sadar Hospital, Siwan during his treatment at about 13:00 hours (1 P.M.) and on that basis the formal FIR was registered on 25.07.1991 at 6 P.M. against the accused persons.

28. It is found from the records that prior to the recording of the fardbeyan of PW-3 the I.O. had visited the place of occurrence on the basis of the information recorded by the officer in-charge Mahendra Pandey vide Station Diary Entry No. 393 dated 25.07.1991. The information was that at the bathan of Shivkumar Pati Tiwari some miscreants had injured him and his uncle by firing and they had taken away Shivkumar Pati Tiwari towards Diyara. In his evidence, PW-11 has stated that on the basis of Sanha he along with Mahendra Pandey, armed forces and Mahal Choukidar reached Kashidatt Diyara at the bathan of Shivkumar Pati Tiwari at 12:30 P.M. where he had taken the statement of Phuleshwar Bhar (PW-8) and inspected the place of occurrence. We find that in paragraph ‘3’ of his evidence PW-11 has given the description of the place of occurrence. It is straw- made ‘Palani’ in Diyara which is ‘12’ hand long and ‘8’ hand in width. PW-11 has stated in his cross-examination that the station diary entry was recorded on 25.07.1991 at 10:00 A.M. itself but what kind of information had been received is not recorded in the station diary. PW-11 has stated that he had reached at the place of occurrence, he inspected the same and immediately after reaching he had recorded the statement but he had not mentioned the exact time of recording of the statement.

29. From the evidence of I.O (PW-11), in paragraph ‘29’ and ‘31’, it would appear that the I.O. after reaching the place of occurrence had recorded the statement of Phuleshwar Bhar (PW- 8), who had disclosed the name of only four accused. Thakur Harijan (PW-7) who is a tendered witness has not stated anything in course of trial, about him also the I.O. has stated that he had told him that he had seen four miscreants coming but had not identified them.

30. From the above materials on the record, we find that the finding of the learned trial court that police had neither lodged FIR on the basis of the Sanha nor lodged FIR on the basis of first statement which was of Phuleshwar Bhar (PW-8) even as police had started investigation on the basis of his statement is a correct finding of affect.

31. We find from the records that police registered FIR on 25.07.1991 at 6:00 P.M, on the basis of the fardebyan of PW-3 which was recorded on 25.07.1991 at 13:00 hours, the trial court is correct in saying that this would be hit by Section 162 of Cr.P.C.

32. The delay in lodging of the FIR in this case has to be considered keeping in view the quality of the evidences of the PW-1 and PW-2 who are though injured witnesses but the trial court has found their story highly doubtful, the motive behind the occurrence as stated by them has not been established and the trial court has not believed the story propounded by the informant as motive for the occurrence. Apart from these, the evidence of doctors PW-4 and PW-5 who had examined PW-1 and PW-3 are also ruling out the ocular evidences.

33. This court finds on perusal of the evidence of PW-1, deposed in course of trial, that he, the informant, the deceased and Thakur Harijan (PW-7) were talking about the agricultural activities, in the meantime from Southern side Ramnaresh Ahir came with a gun and along with him Chandehswar Kurmi, Nandlal Ahir, Anil Singh and Sukhraj Mallah also came. Balendra Ahir, Janardan Ahir, Dwarika Ahir and Naga Bhar also came with lathi. The trial court has rightly found that the informant PW-3 had not named Nandlal Ahir in his fardbeyan. PW-1 had stated in trial that ‘5’ accused persons were having gun in their hands and ‘4’ accused were having lathi. This witness deposed contrary to the case of the informant in his fardbeyan that ‘4’ accused were carrying gun who had started firing on the deceased Advocate Shivkumar Pati Tiwari as a result whereof he died there, whereafter all the ‘5’ gun borne miscreants had taken away his dead body towards East-West corner and when his brother Uma (PW-1) stopped them then Balendra, Dwarika, Janardan and Naga Bhar had assaulted him on his right hand causing him fracture. Sukhraj fired from gun which caused injury on his ear and neck but the doctor (PW-4) had not found any fire-arm injury on his left ear and neck. The trial court, therefore, found that PW-1 and PW-3 were assaulted only when they stopped the accused persons from taking away the dead body of Shivkumar Pati Tiwari. This sequence of occurrence is not corroborated from the fardbeyan and the evidence of PW-3. We find that the trial court has not committed any error in analyzing the evidence of PW-3.

34. We have further noticed that the trial court has gone through the evidence of PW-3 who is the informant of the case. In course of trial PW-3 has stated similarly supporting the evidence of PW-1 but in the said process he has reversed the sequence of event as stated by him earlier in his fardebyan.

35. This Court has once again perused the deposition of the prosecution witnesses. On perusal of the evidence of Dr. Ramji Chaudhary (PW-4), it appears that he had admitted Ram Tapasya Tiwari (PW-1) in hospital on 25.07.1991 in conscious condition, his pulse rate was also regular. PW-4 had found that he had an incised wound in left pinna (i.e. left external ear) ecchymosis on left eye lid. He had advised dressing and stitching of the wound and had further advised some medicines. PW-4 has proved the Bed-Head-Ticket of Ram Tapasya Tiwary which has been marked as Exhibit ‘2’. The doctor opined that the injury no. 1 was not possible by gun shot. In paragraph ‘10’ of his deposition, PW-4 has stated “On the same day i.e. on 17.11.94, I admitted Uma Pati Tiwary S/o late Raghu Pati Tiwary of village Tier, P.S. Assaon, of Siwan. I had found swelling on his right hand and one lacerated wound. I advised medicine and x-ray.” The Bed-Head-Ticket of Uma Pati Tiwary has been marked Exhibit ‘5’. He has proved the injury report of Ram Tapasya Tiwary and Uma Pati Tiwary as Exhibit ‘3’ and Exhibit ‘6’ respectively. PW-4 has stated that in their entry in the Bed-Head-Ticket regarding Ram Tapasya Tiwari is from 25.07.1991 till 28.07.1991 but the back sheet of the Bed- Head-Ticket (first page) is blank and looking to this he was not in a position to say as to on which date he was released from the hospital. He has stated that no serious injury was reflecting through the Bed-Head-Ticket. He has further stated that incised injury is not possible by firearm. The injury of pinna had no impact on internal part of the ear nor on the drain also. He has stated that with this injury on pinna, patient would not be expected to become unconscious. PW-4 further stated that this sort of injury can also be easily manufactured. Regarding injury no. 2 also, PW- 4 has stated that it could also be easily manufactured. Regarding the injury of Uma Pati Tiwari, he has stated that Uma Pati Tiwari had only one injury and the injury on mere look appeared to be superficial one.

36. We have also gone through the evidence of doctor Bibhash Prasad Singh (PW-5). He has proved the entire report of the Bed-Head-Tickets which has been marked as Exhibit ‘5/1’ and ‘5/2’ respectively. In paragraph ‘2’ of his deposition, PW-5 has stated that he cannot say with certainty the nature of weapon used in causing the injury. He could not say that the injury was caused by gun shot or not.

37. Ramji Tiwary (PW-6) has not supported the prosecution case. He has been declared hostile. Thakur Harijan (PW-7) about whom PW-1 and PW-3 have stated that he was present with them at the bathan when the occurrence took place has been tendered by the prosecution. In course of his cross- examination, he has stated that he does not know anything about the occurrence. Phuleshwar Bhar (PW-8) has stated in his examination-in-chief that he had not seen seizure of blood stained lathi and three blank cartridges. This witness has been declared hostile and has been cross-examined by the prosecution. In course of his cross-examination, this witness has stated in paragraph ‘17’ that the deceased Pandit Shivkumar Pati Tiwari had agricultural land in diyara since his grand-father and father’s time, he had increased the land and had created big plots/chunks by amalgamating and usurping the land of others. This witness has stated that the deceased used to punish persons in diyara by tying them on their petty mistakes and he used to impose fine upon them, as a result of this, people had formed a group against the deceased. In paragraph ‘18’ of his cross-examination, he has stated that accused Ram Naresh Chaudhary was an Assami of the deceased but many members of the family of Ram Naresh Chaudhary came in job, therefore, his financial condition had improved. He has stated that in recent 4-5 years, it so happened that the land which Ram Naresh Chaudhary had purchased, the deceased was keeping eyes over those lands and for this reason he and his family members were having enmity.

38. We find from the evidence of Jagdish Narayan Prasad (PW-11) that he had visited the place of occurrence on 25.07.1991 at about 12:30 P.M. and it was PW-8 who had made the first statement before him but the statement of PW-8 has been suppressed by the prosecution. No FIR has been lodged on that basis. PW-11 has stated that PW-8 had disclosed name of only four accused but even that has been suppressed by the prosecution in course of trial.

39. We, therefore, find that the findings of the learned trial court saying that the prosecution has suppressed the first version of the occurrence that came from the mouth of Phuleshwar (PW-8) is correct.

40. We find from the evidence of PW-11 that he has recorded the evidence of the informant Uma Pati Tiwari (PW-3). In paragraph ‘47’ of his evidence, PW-11 has stated that Ram Tapasya Tiwari had stated that the named accused persons in the FIR had taken away the dead body from the site. They had not stated that the gun borne criminals namely Ram Naresh, Chandeshar, Anil, Nand Lal, Sukhraj Mallah had been escaping with the dead body of Shivkumar Pati Tiwari towards south-west corner. He had not stated that because of the assault by the accused, Uma Pati Tiwari had suffered fracture. Ram Tapasya Tiwari had also not stated that he had identified the accused persons in the light of torch and in moonlit night. We further find that PW-11 also contradicted Uma Pati Tiwari (PW-1). He has stated that Uma Pati Tiwari had not made statement before him that three-shell torch was there in the hand of Ram Tapasya Tiwari and in the light of the said torch, he had identified the criminals. He had also not stated that Balindra and Janardan had cut away the wire of his land. Other witness, namely, Nemdhari Mallah (PW- 12) has also been tendered by the prosecution. He has not stated anything about the occurrence which took place on 25.07.1991 at the bathan of the deceased. Altaf Ali Khan (PW-13) is the Sub- Inspector of Police who had recorded the fardebyan of Uma Pati Tiwary (PW-3). He has proved the fardebyan and identified the thumb impression of the informant.

41. Learned Senior Counsel for the appellant has given much emphasis on his submission that even if there is only two witnesses to support the prosecution case, a conviction may take place on the basis of their evidences. Learned Senior Counsel has relied upon the judgment in the case of Haalesh (Supra). On perusal of the said judgment, we find that in the said case, the occurrence took place in the house of the deceased Shivanna. Accused A-1 to A-3 caught hold of the deceased, assaulted him with choppers; and accused A-4 and A-5 caught hold of his wife Savithramma and assaulted her with choppers; and A-6 and A-7 assaulted Girija, the daughter of the deceased Shivanna with choppers whereas accused A-8 and A-9 stood at the door of the house keeping a watch and instigating other accused to kill the deceased Shivanna and his family members. The deceased Shivanna upon sustaining injury died whereas his wife and daughter who had sustained grievous injury survived. In this background, the Hon’ble Supreme Court held that PW-3 and PW-4 are the eye witnesses who were present at the scene of the incident and were grievously injured. Their testimonies in the background of the case is the best evidence, even as they are the members of the family and may be interested persons but their testimonies cannot be discarded simply for the reason that they are family members in the scenario of the case that the incident took place inside the house of the deceased Shivanna, where there could not have been any other witness other than the family members. The Hon’ble Supreme Court also found that the evidence of the two eye witnesses had not been shaken in cross-examination. On a bare reading of the judgment of the Hon’ble Supreme Court in the case of Haalesh (Supra), we find that the facts situation and evidences in the said case were quite different and distinct. In this case, the occurrence has taken place at the bathan of the deceased where not only PW-1 and PW-3 were present, according to PW-1 and PW-3 their staff Thakur Harijan (PW-7) was also present at the place of occurrence, there were a large number of workers. While PW-7 has not supported the prosecution case none of the workers have been examined in this case. The learned trial court as well as this Court find that the prosecution suppressed the initial information on the basis of which Sanha was registered and then even as statement of Phuleshar Bhar (PW-8) was recorded at 12:30 P.M. and the investigation had started on that basis, but the police did not register any FIR on the basis of the statement of PW-8. In the present case, the FIR was registered at a much belated stage at 06:00 P.M. on 25.07.1991 on the basis of the fardebyan of PW-3. Contrary to the evidence of two witnesses in the case of Haalesh (Supra), in the present case, the evidence of PW-1 and PW-3 have not withstood the test of cross-examination.

42. On careful consideration of the entire evidence on the record, we find that the learned trial court has rightly appreciated the evidences on the record. This Court finds no reason to take a different view of the matter. This appeal has no merit. It is dismissed.