VARADARAJAN, J.

1. This appeal has been filed against the judgment of the Allahabad High court in Government Appeal No. 6 of 1970 in which the appellants were found guilty of offences under Ss. 302, 323 I.P.C. both read with S. 149, I.P.C. and under S. 147 I.P.C. They have been sentenced to imprisonment for life under S. 302 read with S. 149 I.P.C. and to rigorous imprisonment for one year each under S. 323 read with S. 149 I.P.C. and S. 147 I.P.C. The appellants were acquitted by the learned Sessions Judge, Azamgarh. Government appeal No. 6 of 1970 was filed against the acquittal by the trial Court

2. The case of the prosecution has been set out in detail in the judgments of the trial Court and the High Court and we do not think it necessary to set it out in detail in this judgment. In short the case of the prosecution is that the appellants Kedar Rai, Subedar Rai and Ramavtar Rai are brothers who live in the same house situate about 30 steps south of the house of the deceased, Radhe Raman who was the youngest son of Swami Nath, P.W. 1. The appellants Udho Rai and Ramesh Rai are brothers who are living close to the house of the deceased and P.W. 1. and his pattidar, Ram Narain Rai and these appellants were siding the opponent of P.W. 1. In this background on 16-10-1968 at about 7.30 a.m. when P.W. 1 was urinating at the back of his house, Radhe Raman shouted and P.W. 1 rushed out and saw the appellants beating Radhe Raman with lathis, about 15 paces away from the house. P.W. 1, shouted and wanted to stop the appellants from beating the deceased but they beat him up also with lathis. After receiving the injuries Radhe Raman fell on the ground and the appellants continued to beat him even thereafter. Radhe Raman received as many as 34 injuries of which injuries Nos. 1, 3, 5, 6 and 14 were lacerated injuries and the others were contusions and abrasions. These injuries have been found by Dr. N. Dutta, P.W. 5 who conducted autopsy on the body of the deceased, to be sufficient generally to cause death and to have been due to assault with lathis. P.W. 1, also had as many as nine lathi injuries. The First Information Report about the occurrence was given by P.W. 1 at the Police Station situate six miles away from the scene of occurrence at 11.30 a.m. on the same day. In that First Information Report, P.Ws. 2 and 3 and some others are named as eye witness

3. The case of the prosecution rests on the evidence of P.Ws. 1 to 3. As stated already P.W. 1 is the father of the deceased Radhe Raman. P.W. 2 Meena Kumari is daughter of the deceaseds sister

4. The defence of the appellants was one of denial and it was their case that the occurrence has taken place 2 1/2 Kilometers away from the house of the deceased at about 4.30 a.m. and that the case has been foisted against them falsely because they were siding the opponent of P.W. 1 in the proceedings taken under S. 107 of the Criminal P.C

5. The learned Sessions Judge accepted the case of the defence that the occurrence had taken place 2 1/2 Kilometers away from the house of the deceased and P.W. 1 and not in front of their house. In that view and also because the blood-stained clothes of P.Ws. 2 and 3 alleged to have been recovered from them by the Investigating Officer, had not been sent for chemical analysis, the trial Court refused to place any reliance on evidence of P.Ws. 2 and 3. The trial court refused to accept the evidence of even P.W. 1 due to certain discrepancies in his evidence. Thus the trial court found that the appellants were not guilty and acquitted them

6. In the appeal the High Court accepted the case of the prosecution that the occurrence had taken place at 7.30 a.m. in front of the house of the deceased and P.W. 1. The High Court accepted the evidence of P.Ws. 1, 2 and 3 and expressed the view that the discrepancies found in the evidence of P.W. 1 are not material. Thus the High Court found the appellants guilty under S. 302 I.P.C. read with S. 149 I.P.C. read with S. 149 I.P.C. with reference to the death of the deceased Radhe Raman and under S. 323 I.P.C. read with S. 149 I.P.C. with reference to the injuries to P.W. 1 and also under S. 147 I.P.C. on the evidence of P.Ws. 1 to 3 and convicted them and sentenced them as mentioned above

7. Before us the learned counsel for the appellants contended that the occurrence had taken place at about 4.30 a.m. and not at 7.30 a.m. and that the deceased had been attacked only about 2 1/2 kilometers away from the house by some others ant not in front of the house of the deceased and P.W. 1. He further submitted that the evidence of P.Ws. 2 and 3 should not be believed on the ground that they could not have been present at the scene of the occurrence situate 2 1/2 kilometers away from their house at the time of the occurrence and that if they had fallen on the body of the deceased during the occurrence and their clothes became blood-stained as stated by them in their evidence, it is improbable that their clothes would not have been sent for chemical analysis. It is true that the clothes of P.Ws. 2 and 3 have not been sent for chemical analysis. It is true that the clothes of P.Ws. 2 and 3 have not been sent to the Chemical Examiner and P.Ws. 1 to 3 have stated in their evidence that P.Ws. 2 and 3 fell over the body of the deceased when he was being attacked by the appellants and that their clothes became stained with blood. If the clothes of P.Ws. 2 and 3 had become stained with blood and had been seized by the investigating officer, it is improbable that he would not have sent them for chemical examination especially having regard to the fact that clothes seized from the body of the deceased had been sent for that purpose. Therefore, we are of the opinion that the evidence of P.Ws. 1 to 3 that P.Ws. 2 and 3 fell over the body of the deceased for protecting him from further attack by the appellants and that the clothes of P.Ws. 2 and 3 were seized by the police is an improvement of the case of the prosecution. This would not, however, improbabilise the presence of P.Ws. 2 and 3 at the scene of the occurrence

8. The presence of P.W. 1 at the scene of the occurrence when the deceased Radhe Raman was attacked could not be disputed and as matter of fact it was not disputed before us by the learned counsel for the appellants. If that is so and the deceased and P.W. 1 had been attacked about 21/2 kilometers away from their house it is improbable that the prosecution would have shifted the scene of occurrence from that place to some place near the house of the deceased merely to receive the support of the evidence of P.Ws. 2 and 3 to sustain its case. The defence theory that the deceased was attacked at 4.30 a.m. when he was on his way to the court for attending the case under S. 107 Cr.P.C. is not acceptable for two reasons : (i) that it is improbable that he would have started so early to go to the court and (ii) that P.W. 1 who had been exempted from personal attendance in that case would not have accompanied him

9. It is true that some other persons who have been named in the First Information Report as eye witnesses have not been examined by the prosecution. But it is seen from the judgment of the High Court that there is faction in the village and that consequently other persons were not forthcoming to give evidence in this case. Therefore, no adverse inference could be drawn against the prosecution from the non-examination of other persons mentioned in the First Information Report as eye witnesses

10. We agree with the High Court that the occurrence had taken place about 15 paces away from the house of the deceased and P.W. 1. It is true that bloodstained earth has not been recovered from the scene of the occurrence by the investigating officer though as stated earlier the deceased had sustained as many as 5 lacerated injuries besides a number of contusions and abrasions. From the failure of the investigating officer to recover bloodstained earth from the scene of occurrence it is not possible to infer that the occurrence had not taken place in front of the house of the deceased and P.W. 1. The evidence of P.Ws. 2 and 3 could not, therefore, be rejected as unreliable as has been done by the learned Session Judge. We agree with the High Court that as the occurrence had taken place in front of the house of the deceased P.Ws. 2 and 3 who are members of the family of the deceased and P.W. 1 and natural witnesses who would have come out of the house on hearing the alarm of the deceased who had been received as many as 34 injuries. Therefore, we accept the evidence of P.Ws. 2 and 3 who corroborate in a large measure the evidence of P.W. 1. The discrepancies relied upon by the learned Session Judge in his judgment for rejecting the evidence of P.W. 1 are not material discrepancies. It is not possible to reject that evidence of P.W. 1 altogether on account of the discrepancies having regard to the fact that he is an injured witness whose presence at the scene of the occurrence when the deceased was attacked was not disputed before us by the learned counsel for the appellants as mentioned above. In these circumstances, we find that the High Court was justified in accepting the evidence of P.Ws. 1 to 3 and finding the appellants guilty and convicting them under S. 302 I.P.C. read with S. 149 I.P.C in regard to the death of the deceased Radhe Raman and under S. 323 I.P.C. read with S. 149 I.P.C. in regard to the attack on P.W. 1 and also under S. 147 I.P.C We confirm the conviction and the sentence awarded to the appellants by the High Court. The appeal fails and is dismissed

11. Appeal dismissed.