Ramesh Sinha, J.

1. This appeal under Section 374 (2) Cr.P.C has been preferred by the convicted appellants Muntazim, Mustaqim, Rhimuddin and Idris against the judgment and order dated 19.09.1984 passed by Shri H.L. Kurel IIIAdditional Sessions Judge, Barabanki in Sessions Trial No. 241 of 1982 convicting and sentencing the appellants under Section 147 IPC to undergo one year rigorous imprisonment, and to further undergo 1½ years rigorous imprisonment under Section 148 IPC and to undergo life imprisonment under Section 302 IPC read with section 149 IPC.

2. Wrapping the facts in brief the deceased Haji Majid Ashraf Khan owned a house in Village Sipahiya, Police Station Mawai District Barabanki. He had raised his house on his own land adjoining to his house. The accused Idris claimed that adjoining land. There was unfriendly atmosphere between the two families A case was registered against the accused but he was acquitted of that offence. On account of this enmity, accused Idris had beaten Haji Ashraf Khan at Madhwa Nala.

3. Parnala of complainant’s house falls in Kolia between the house of the complainant and the accused Muntazim. The accused person had taken out parnala, raised a wall in the said kolia and prevented thereby flow of water of parnala. When the father of the complainant abstained the accused appellants from doing so, the accused started abusing and threatening his father. Complainant went to register a report in this regard to the police station concerned but the accused restrained their way and kept a watch standing in the ambush on their way. Therefore they could not lodged the FIR immediately.

4. The complainant along with other relatives Ejaz and Ashraf moved to the police station at about 4 p.m. As soon as they reached ‘Phool ka talab’ near Naya Purwa all the accused person appeared from their hiding place in the Behaya and chased them. The complainant any how managed to escaped by raising alarm but Haji Ashraf was an old man, therefore, he was overpowered by the accused Idris holding Ballam, accused Muntazir holding axe and the rest of accused person with lathi and continued to beat the deceased till his death near the house of Jagjeevan. The incident was witnessed by Sifat Ahmad, Abrar Ahmad, Nizamuddin, Ejaz Ahmad, Shahnawaz and Shabbir.

5. The matter was reported to police station Mawai and a case was registered as Crime No. 84 under Section 147, 148, 149 , 302 IPC Police Station Mawai and endorsed on G.D No. 22 on the same date. Investigation was conducted by Investigating Officer Gulab Singh Bhatia who recorded the statement of witnesses, inspected and prepared the site plan (Ex. Ka-6) and conducted inquest of deceased, prepared photo lash, challan lash, letter to C.M.O and other relevant papers and send the body of the deceased for inquest through constables recorded the statements of witnesses. He collected plain and blood stained earth, sealed and prepared the recovery memo on the spot (Exhibit Ka 7 and 8), and prepared recovery memo of blood stained cloth (Ghamcha) of deceased (Exhibit Ka-9). After collecting all the relevant evidences and noting down the result of post-mortem the Investigating Officer submitted charge sheet No. 22 of 1979 in court under Section 147, 148, 149, 302 IPC.

6. Convict appellants appeared in the Court and after taking cognizance, the Court concerned committed the case to the Court of Sessions.

7. The Sessions Court framed charges against all the accused. The accused abjured from the charges and claimed to be tried.

8. In order to prove the case against the convict appellants, the prosecution produced the following witnesses:

(A) P.W.-1 Mushtjab Ahmad.

(B) P.W.-2 Nijamuddin.

(C) P.W.-3 Gulab Chand Bhatiya Investigating officer.

(D) P.W.-4 Dr. Gopal Swaroop who conducted the autopsy on 08.08.1979 at 3 p.m. and found injuries on the body of the deceased.

(E) P.W.-5 Head Constable 35 Onkar Nath who prepared the chik report on the basis of written report. He proved the G.D entries.

(F) P.W. -6 Kripa Shanker Dubey. He send the case property to Forensic Science Laboratory through constable Ayodhya Prasad in sealed condition.

(G) P.W.-7 Constable Mohd. Jubair Khan. Who send the case property (2 bundle and 2 box) and entered it in G.D. No. 11.

9. Besides oral evidence, prosecution produced and proved following documentary evidence:

(a) FIR (Exhibit Ka-1).

(b) Inquest report (Exhibit Ka-2).

(c) Photo lash (Exhibit Ka-3).

(d) Challan lash (Exhibit Ka-4).

(e) Letter to C.M.O (Exhibit Ka-5).

(f) Site plan (Exhibit ka-6).

(g) Recovery memo (Exhibit ka-7,8,9).

(h) Charge-sheet (Exhibit ka-10).

(I) Postmortem report (Exhibit ka-11).

(J) FIR (Exhibit Ka-12).

10. After concluding the evidence from the side of the prosecution statement of accused were recorded under Section 313 Cr.P.C.

11. Convict appellant No. 1 Muntazim stated in his statement under Section 313 Cr.P.C that he is falsely implicated in the case because he is brother of Mustaqim. The convict appellant No. 2 Mustaqim stated in his statement under Section 313 Cr.P.C that the deceased wanted to purchase his house therefore he is falsely implicated in the case. Convict appellant No. 3 Rahimuddin denied the evidences adduced against him and stated that he was residing in Kanpur and was working in hotel since the last eight to ten years. His father Shaukat had expired. Convict appellant No. 4 Idris denying all the evidences stated that he is falsely implicated in the case. He was playing on transistor, Nizamuddin forbade him from playing transistor but he did not turned off the transistor. Nizamuddin threw his transistor, then he entangled with Nizam Uddin. Due to this animosity he is falsely implicated. The convict appellant Moharram Ali denied the incident.

12. He had expired during the pendency of this appeal and the appeal had already stood abated against him.

13. The accused produced D.W.-1 Kashiram to show that Moharram Ali had no concerned with the Village Sipahiya as such he had no motive for murder.

14. After hearing both the parties and perusal of the record, learned trial Court reached to the conclusion that the prosecution has succeeded in proving the guilt to hilt against the accused person and all of them were found guilty in Sessions Trial No. 241 of 1982 arising out of Crime No. 84 under Section 302, 147, 148, 149 IPC Police Station Mawai District Barabanki.

15. Aggrieved by the judgment and order the present appeal has been preferred by the convict appellants.

16. Heard Shri Anrendra Nath Tripathi, Shri Suresh Kumar Yadav, learned counsel for the appellants and Shri Arunendra, learned Additional Government Advocate appearing on behalf of the State respondents.

17. It is contended by the learned counsel for the appellants that the judgment passed by the trial court is erred in law and on facts. The evidences on record is most tenuous, limping, shaky, suspicious and fragile and the conviction cannot be sustained. Learned trial court misread the evidence on record and did not properly appreciate the veracity of prosecution case as the prosecution case is absolutely inconsistent from the very beginning.

18. The presence of P.W-1 and P.W.-2 is highly doubtful. P.W-2 is a chance witness and it is quite unsafe to rely upon his testimony. The conduct of P.W.-1 is inherently strange against a human conduct to be mere spectator of the occurrence without making any effort to rescue his father. Therefore, the impugned judgment and order dated 19.09.1984 is liable to be set aside and the appellants are entitled to be acquitted from the charges levelled against them.

19. On the contrary Shri Arunendra, learned A.G.A for the State has argued that it is a case based on ocular evidence. P.W.-1 is the son of the deceased and P.W.-2 is the eye-witness of the incident of murder. He is an independent witnesses who witnessed the incident and therefore there is no reason to disbelieve the witnesses. The injuries are corroborated by the eye-witnesses and the post-mortem report. The evidence against the appellants are proved beyond reasonable doubt. Place of occurrence is also established by the investigating officer. There is no error in the judgment and order passed by the court below, hence, the present appeal is liable to be dismissed.

20. Considered the rival submissions and perused the record as well as the record of appeal and gone through the case law cited.

21. During the course of trial accused Israr died and the trial stood abated against him whereas accused Moharram Ali died during the pendency of the appeal and the appeal was abated against him. Now the present appeal survives on behalf of appellants Muntazim, Mustaqim, Rahimuddin and Idris is being heard and decided.

22. In the present matter, the complainant has alleged in the FIR that on account of previous animosity regarding the flow of water parties have strained relations and on 07.08.1979, at about 4 p.m. he was going to the police station to lodge FIR against the accused persons, he was assaulted by the accused persons near ‘phool ka talab’. The complainant and Ejaz escaped from the place of occurrence however, Haji Ashraf being an old man could not escape and was killed by accused.

23. In order to prove his case the prosecution had adduced seven witnesses. P.W-1 Mushtjab Ahmad stated that he is the son of the deceased when he was going to police station along with his father Haji Ashraf Khan (now deceased) and other relative Ejaz for lodging the FIR in the police station about the incident that had taken place in the forenoon of the day of occurrence relating to the flow of parnala, prior to this incident. His father constructed a house on the vacant land in the south of their house, accused Israr claimed that land and about 13 years ago accused Israr (now deceased) assaulted his father Haji Ashraf Khan (now deceased) near Mazwa Nala and a criminal case against Israr was lodged. Israr was acquitted of that case and thereafter both the families have animosity. Again on the date of occurrence accused Muntazim, Mustakeen, Israr, Moharram Ali destroyed their parnala situated in the west of their house and erected a wall in front of their main gate. When his father raised objection to the construction, then the accused abused his father. His father wanted to lodged an FIR regarding that incident but accused obstructed their way towards the police station and he could manage to move for police station at about 3:45 p.m. along with complainant and his relative Ejaz when they reached near ‘Phool Ka Talab’ the accused came out from the ambush, chased them and Muntazim assaulted with axe and Idris with balam and rest of the accused with lathi in their hands. The incident was witnessed by Abrar Ahmad, Nizamuddin, Fiyaz, Ejaz, Shahnawaz, Shabbir and Shyam Lal.

24. P.W.-2 Nizamuddin deposed that he belongs to village Sipahiya to which the accused belongs. This witness was returning from Mehmoodpur, where he had gone for getting his Kripan and fawda (axe) sharpen from the shop of a carpenter. This witness is stated to be an eyewitness of the incident who tried to prove the guilt to the hilt.

25. P.W-3 Gulab Chand Bhatia, the investigating officer of the case who recorded the statement of witnesses, inspected and prepared the site plan (Ex. Ka-6) and conducted inquest of deceased, prepared photo lash, challan lash, letter to C.M.O and other relevant papers and send the body of the deceased for inquest through constables recorded the statements of witnesses. He collected plain and blood stained earth, sealed and prepared the recovery memo on the spot (Exhibit Ka 7 and 8), and prepared recovery memo of blood stained cloth (Ghamcha) of deceased (Exhibit Ka-9).

26. P.W.-4 Dr. Gopal Swaroop conducted post-mortem on the dead body of the deceased and found following injuries on the body of the deceased:

1. Lacerated wounds 4cm x1cm x muscle bone deep over the oxipital bone on the left side 6cm above the trans of VII cervical vertebra.

2. Lacerated wounds 5 cm X.5 cm x muscle deep over the o oxipital bone on the right side 2 cm above the injury no.1.

3. Lacerated wounds 4 cmx.5 cm muscle bone deep over the left side of oxipital bone 2 cm above injury no. 2.

4. Lacerated wounds 5 cm x/75 cm x muscle deep over the left partial bone 3.5 cm above he injury no. 3.

5. Lacerated wounds 6 cm x.5 cm x muscle bone deep over the lower arm on the lateral aspect 10 cm below the left elbow joint.

6. Lacerated wounds 2 cm x .5 x muscle bones deep over the left lower arm on the lateral aspect 10 cm below the left elbow joint.

7. Lacerated wound 1 cm .5 cm muslce bone deep over the left lower and 5 cm above the waist joint.

8. Contused swelling 10cm x .5 cm x black colour over the lower arm on the lateral aspect 4 cm below the left elbow.

9. Contused swelling 13 cm x 8.5 cm black in color around the right elbow joint and arm.

10. Abrasion 3 cm x ½ cm.

11. Abrasion 2.5. cm .5 cm black in color below the left knee.

27. P.W.-5 Head Constable 35 Uma Nath stated on oath that he was posted as Head Constable Muharir at Police Station Mawai and prepared chick report on the basis of written report and endorsed the same in G.D No. 22 dated 07.08.79 at 3:10 p.m. on the same day and proved in Court Ex Ka-13. This witnesses stated that Shri Gulab Singh Bhatia submitted case property; blood stained earth, plain earth and blood stained tehmat on 08.08.79 at 8-10 p.m. which he endorsed on G.D. No. 17.

28. P.W.-5 further stated that Constable 138 Subedar Singh submitted one packet of blood strained tehmat and kurta on 09.08.1979 at about 7:10 a.m. which were endorsed by him at G.D. No. 6 on the same day.

29. The above four packets were given to Constable Mohd. Zubair for submitting in Sadar Malkhana which was endorsed by Head Constable Shri Prakash Srivastava in G.D on 06.03.80.

30. P.W.-6 Sub-Inspector Kripa Shankar Dubey deposed that he was posed in Sadar Malkhana and four packets were submitted by Constable Jubair in sealed condition on 06.03.80 which was again sent to forensic science laboratory through Constable Ayodhya Prasad on 19.03.80 which was endorsed in G.D by Constable Mewa Lal.

31. P.W.-7 Mohd. Jubar Khan C.P. 471 stated that he submitted four packets (two bundle and two packets) in Sadar Mal Khana in sealed position. The said witnesses proved G.D. No. 17.

32. After conclusion of the prosecution witnesses statements of accused under Section 313 Cr.P.C was recorded. The accused adduced D.W.-1 Kashi Ram who stated on oath in the Court that accused Moharram Ali was lame and physically impaired since birth due to paralysis. So far as the evidence of this witness is concerned he deposed only regarding Moharram Ali who had already died during the pendency of the appeal and the appeal has been abated against him. No other defence evidence is adduced.

33. According to the FIR Sifat Ahmad, Abrar Ahmad, Nizamuddin, Ejaz Ahmad, Shahnawaz and Shabbir witnessed the incident. Nizamuddin who is an ocular witness has appeared as prosecution witnesses and stated that he himself had seen the incident of murder of Haji Ashraf Khan by the accused persons in front of house of Jagjeevan. The witnesses stated that he was coming from village Mehmoodpur after getting his fawda sharpen by ironsmith. He also stated that there is no ironsmith in his own village Sipahiya, therefore, most of the fellow villagers got their work done in Mehmoodpur therefore, he himself came to Mehmoodpur for sharpening his axe The witnesses prove the place of occurrence and provided the correct location of Sipahiya, Mawai, Naya Purwa and Malwanala. He also stated on oath that village Mehmoodpur is about ½ Km away from Naya Purwa in the north and is about 1 Km away in the south of Naya Purwa he further stated that village Sipahiya is about 2 km away in the west of Madhwa Nala. A person who wants to reach village Sipahiya from Mehmoodpur will certainly have to go through village Naya Purwa where the occurrence happened. This witnesses is a farmer and he needs agricultural tools ready. He is not a chance witness and was present on the spot. This witnesses stated on oath that the house of Jagjeevan Ram was locked and house of Babu Ram was closed from inside at the time of incident and after the incident, residents of both the house came outside.

34. It is argued on behalf of the appellants that there are two ways to reach police station. In his cross-examination, P.W.-2 stated that one can reach to police station from village Sipahiya through fields on the bank of Madhuwanala also, but this is a very inconvenient way especially in the rainy season.

35. It is also clear from the evidence that at the time of incident, it was a rainy season and the mud on road do not allow any person to walk in. If there is any other alternative route to police station it is very natural that the person will move through the convenient route. P.W-2 Nizamuddin stated that there were seven witnesses present at the time who were trying to challenge the accused orally but none of them was courageous enought to intervene in the fight because accused were having axe, spear and knife in their hands and were assaulting the deceased collectively. The evidence of this witness inspire confidence to the extent that he was present at the spot and his presence was very natural.

36. Learned counsel for the appellant argued that the witness Ejaz, Sifat, Abrar, Shahnawaz, Shabbir, Jagjeevan Ram and other eyewitnesses were not produced by prosecution. Learned A.G.A replied that it is not the number of witnesses which is to be countered but it is the reliability and veracity of witnesses which has to be considered.

37. Supreme Court in the case of Sunil Kumar Vs. State Government of NCT of Delhi reported at (2003) 11 SCC 367 [LQ/SC/2003/1039] has held thus:

“It is not the number, the quantity but quality that is material. The time honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth is cogent, credible and trustworthy or otherwise.”

38. Similarly in the case of Gulam Sabar Vs. State of Bihar reported at (2014) 3 SCC 401 [LQ/SC/2013/1143] :

“19. In the matter of appreciation of evidence of witnesses, it is not the number of witnesses but quality of their evidence which is important, as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. It is a time-honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise.”

39. So far as witnesses Jagjeevan Ram is concerned P.W.-2 has clarified that his house was locked at the time of incident, therefore, it cannot be said that Jagjeevan Ram witnessed the incident. So far as other independent witnesses are concerned, there is no evidence on record to show that any person of naya purwa has witnessed this incident. On the contrary P.W,-1 stated that the names of witnesses of Naya Purwa have not been mentioned in the FIR as they have not witnessed the incident. There is no evidence on record to show that any person witnessed the incident of marpit near ‘Phool ka talab’ where the incident of marpit took place. P.W.-2 stated that witness of Naya Purwa came after the incident.

40. It is argued that P.Ws. 1 and 2 are interested witnesses as P.W.-1 is the son of deceased and P.W.-2 is the brother of the deceased. But the witnesses appeared in court and deposed about the incident. In lengthy cross-examination no material contradiction could be extracted. Therefore they cannot be disbelieved merely because they are interested witnesses.

41. In Kartik Malhar Vs. State of Bihar (1996) 1 SCC 614, [LQ/SC/1995/1139] the Hon’ble Apex Court has held as under:-

“We may also observe that the ground that the witness being a close relative and consequently, being a partisan witnesses, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dilip Singh’s case (supra) in which this Court expressed its surprise over the impression which prevailed in the minds of the members of the Bar that relative were not independent witnesses. Speaking through Vivian Bose, J., the Court observed :

We are unable to agree with the learned Judges of High Court that the testimony of the two eye-witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rules. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. The State of Rajasthan [1952] SCR 377 [LQ/SC/1951/78] = AIR 1952 SC 54 [LQ/SC/1951/78] . We find, however, that it is unfortunately still persist, if not in the judgments of the Courts, at any rate in the arguments of counsel.”

In this case, the Court further observed as under:

“A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause such an enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth.

In another case of Mohd. Rojali Versus State of Assam: (2019) 19 SCC 567, [LQ/SC/2019/314] the Hon’ble Apex Court in this regard has held as under:-

“As regards the contention that all the eyewitnesses are close relatives of the deceased, it is by now wellsettled that a related witness cannot be said to be an ‘interested’ witnesses merely by virtue of being a relative of the victim. This court has elucidated the difference between ‘interested’ and ‘ related’ witness in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused (for instance, see State of Rajasthan v. Kalki (1981) 2 SCC 752 [LQ/SC/1981/236] ; Amit v. State of Uttar Pradesh, (2012) 4 Scc 107 [LQ/SC/2012/203] ; and Gangabhavani v. Rayapati Venkat Reddy, (2013) 15 SCC 298) [LQ/SC/2013/988] . Recently, this difference was reiterated in Ganapathi v. State of Tamil Nadu, (2018) 5 SCC 549, [LQ/SC/2018/392] in the following erms, by referring to the three Judge bench decision in State of Rajasthan v. Kalki (supra): “14. “Related” is not equivalent to “interested”. A witness may be called “interested’ only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of the case cannot be said to be “interested”..”

11. In criminal cases, it is often the case that the offence is witnessed by a close relative of the victim, whose presence on the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by labelling the witness as interested. Indeed, one of the earliest statements with respect to interested witnesses in criminal case was made by this Court in Dalip Singh v. State of Panjab 1954 SCR 145 [LQ/SC/1953/60 ;] , wherein this Court observed:

“26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person...”

12. In case of related witness, the Court may not treat his or her testimony as inherently tainted, and needs to ensure only that the evidence is inherently reliable, probable, cogent and conistent. We may refer to the observations of this Court in Jayabalan v. Union Territory of Pondicherry, (2010) 1 SCC 199 [LQ/SC/2009/1992] ;

“23. We are of the considered view that in cases where the Court is called upon to deal with the evidence of the interested witnesses, the approach of the Court while appreciating the evidence of such witnesses must not be pedantic. The Court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the Court must not be suspicious of such evidence. The primary endeavour of the Court must be to look for consistency. The evidence of a witnesses cannot be ignored or shown out solely because it comes from the mouth of a person who is closely related to the victim.”

42. It is argued on behalf of the appellants that the presence of complainant on the place of occurrence is highly improbable. He is the son of the deceased. He did not try to save his father and allowed his father to die in this marpit. His conduct is not natural and convincing but according to prosecution story all the six accused having deadly weapons attaked them when he was going alongwith the deceased and Ejaz to the police station Mawai to lodge FIR in the police station about the incident that took place in the forenoon of that day regarding the obstruction in the flow of parnala by constructing wall by accused. He is the natural witnesses who have accompanied his father while going to police station for lodging the FIR. There is no evidence on record to show that deceased had any other son alive who might have accompanied him. Therefore, it is very natural conduct of complainant that he was going to lodged FIR with his father (now deceased) and close relatives who described the incident in the court on oath.

43. It is stated that there are certain infirmities in the statement of witnesses. P.W.-1 complainant and P.W.-2 Nizamuddin have stated in their statement that they were going on foot to lodge the FIR and it is admitted by them that there were cycles in the house of the deceased. Therefore, it is the contention of learned counsel that there is no sense of going on foot while they have cycle in their homes. Normally, persons having cycles would prefer to go on cycles. This argument of learned counsel is based on assumption. The incident took place during the rainy season. There were muddy roads everywhere. Complainant went to the police station along with his son and Ejaz and other persons with him. Therefore, it is a convenience of complainant to walk on foot or on cycle. It cannot be insisted upon that he must use cycle while going to police station. Therefore, this argument do not appeal to the Court. The FIR discloses the manner of assault. Hence the contradiction is of trivial in nature and does not adversely affect the evidence of prosecution. Furthermore the fact has been proved by evidence. It is admitted fact that in the forenoon of 07.08.1979 at about 10 p.m. the incident took place at the door of the complainant. A report was lodged by Smt Majid wife of Habbu who is the father of the accused Mustakim regarding the incident for which the deceased was going to lodge first information report. Therefore, it is admitted that the incident occurred in the forenoon of 07.08.1979 and report thereof was lodged in the police station. If the incident of forenoon is correct, then the subsequent event of this incident may also be presumed to be true.

44. According to the post mortem report several injuries were found on the person of the deceased out of which seven injuries were lacerated wounds. Three injuries were found on the occipital bone, two on parietal bone, two on lower arm in lateral aspect below the elbow joint in left hand. Two contusions were found on the right hand. Injuries number 1 to 5 are head injuries and hemorrhage were found on the brain and nose. Doctor opined that cause of death was shock and hemorrhage due to ante mortem injuries.

45. According to the prosecution case the accused assaulted the deceased with lathi and ballam. Muntazim attacked with axe. Therefore, the injuries found on the person of the deceased are in consonance with the case of prosecution as well as corroborated by prosecution witnesses.

46. It is argued by the learned counsel for the accused appellant that none of the injuries were found on the face of the deceased. As per the panchnama (Ex. Ka-2) the dead body was found lying keeping the face downwards. The deceased was killed by lathi blows. It is natural conduct of human beings that when he is assaulted by someone, he raises his hands first to save his face or head. It transpires from the post-mortem report that both of his hands were got fractured which goes to show that the deceased himself had sustained blows of lathis on his hand and must have saved his face. Moreover, the incident is witnessed by ocular evidence who proved the incident by their cogent evidence.

47. It is argued by learned counsel for the appellants that the deceased must have been attacked by someone else, at any other place as no witnesses was produced from the place of occurrence. According to the prosecution case Haji Ashraf Khan was injured near ‘Phool ka talab’ and was killed near the gate of Jagjeevan Ram. Investigating Officer Gulab Chand Bhatiya has taken blood from the walls of his house which was sent for forensic science laboratory report. The Forensic Science Laboratory report is on record and human blood was found on the sample. Recovery memo is proved by the investigating officer (Ex. Ka7). It is proved by prosecution that blood sample was collected from the place of occurrence which was proved in the court, therefore, the place of occurrence cannot be disbelieved to be elsewhere. If the witnesses from Naya Purwa are not produced before this Court. This fact, alone, cannot change the place of occurrence.

48. So far as the motive is concerned, motive loses its importance when there is ocular evidence. However, in the impugned case the motive is very much clear. There was a dispute regarding flow of parnala and accused closed the parnala of deceased and raised their wall. In the forenoon also the dispute arose regarding the obstruction of flow of water from parnala by the construction of wall and FIR was also lodged by the mother of accused themselves which proved that there was animosity between the parties and due to this animosity accused assaulted the deceased when he was going to lodge FIR in the police station.

49. The learned trial court had discussed the evidence at length. From the perusal of the record of the trial court it transpires that there was a dispute regarding flow of water in parnala which was obstructed by the accused and the quarrel took place in the fore-noon of fateful day. The ocular evidence adduced by the prosecution has proved the prosecution case in court. Motive is well established. Place of occurrence is proved by the prosecution as blood stain earth was collected from the place of occurrence and blood stain were found on kurta, tehmat and gamcha of the deceased.

50. According to the forensic science laboratory report human blood was found in the sample. The injuries found on the body of the deceased are well in consonance with the prosecution case. Accused Mustakim was said to have axe in his hand at the time of incident however, no injury of axe was found on the body of the deceased. It is stated that Mustakim was using the stick of axe and his presence at the place of occurrence was proved.

51. It is also stated that the motive accrue only to accused Israr who has expired during the course of trial but it is admitted in the statement of Section 313 Cr.P.C and during the course of evidence that all the accused formed unlawful assembly and attacked the deceased with common object to kill him. The participation of all the accused is proved in this incident.

52. Learned trial court discussed the evidence of all prosecution witnesses and formal witnesses at length. There is no infirmity or perversity in the judgment and order passed by the learned trial court.

53. Hence, we do not find any reason to interfere with the judgment of the trial court passed in Sessions Trial No.241 of 1982 whereby the accused are convicted by the trial court.

54. The appeal is accordingly, dismissed.

55. The accused appellants-Muntazim, Mustaqim, Rahimuddin and Idris are on bail. Their bail bonds stand cancelled and sureties discharged they are directed to surrender before the concerned Court within a period of two weeks from today failing which they shall be taken into custody by the trial court and be sent to jail to serve out the sentence awarded by the trial court and confirmed by this Court.

56. Let a copy of this judgment as well as lower court record be transmitted to the trial court forthwith for necessary information and compliance.