S.N. JHA & A.K. VERMA, JJ.

The appellants have been convicted under Section 302/34 of the Indian Penal Code and sentenced to rigorous imprisonment for life. They have also been convicted under Section 323 of the Penal Code and sentenced to rigorous imprisonment for three months.

2. The prosecution case, briefly stated, is as follows. In the night of 18.11.85 at about 10 P.M. Baudhi Devi, resident of village Tegrari Tola Ghaphar, P.S. Shivaipatti of Muzaffarpur district, heard the knocking sound on the door. When she came out, she found the appellants armed with Lathi. They assaulted her by Lathi. Baudhi Devi started crying. On alarm raised by her, Makhan Bhagat, younger brother of her deceased husband who had his house nearby, reached there. He too was assaulted by the appellants. Yogendra Bhagat, Jagarnath Bhagat, Bharat Thakur and Husaini Bhagat also came there hearing the sour j of cries of Baudhi Devi and they too were assaulted by the appellants. While the other victims suffered minor injuries for which they were treated by Dr. Baidyanath Singh, In-charge Medical Officer of Minapur State Dispensary, Husaini Bhagat succumbed to injuries. The occurrence was reported by Makhan Bhagat to the ASI of Police Shashi Kant Jha of Siwipatti Police Station at the place of occurrence on the next day i.e. 19.11.95 at 8 A.M. while narrating the occurrence he disclosed that the appellants used to tap toddy from the palm trees standing by the side of the houses of Baudhi Devi and his own and for this purpose they used to go there at odd hours which was objected to by them causing them (appellants) annoyance.

3. On the basis of the said fardbeyan of Makhan Bhagat, Siwaipatti P.S. Case No. 1/85 was instituted against the appellants. ASI Shashi Kant Jha, in the meantime, prepared inquest report, sent the dead body of Husaini Bhagat for post mortem and examined the witnesses under Section 161 of the Code of Criminal Procedure. After completing necessary formalities, he submitted charge-sheet against the appellants and they were thus put on trial.

4. At the trial the prosecution examined as many as 21 witnesses to prove its case. six of whom namely, P.W. 4, Shakaldeo Bhagat, P.W. 9 Raudi Bhagat, P.W. 10 Sheo Shanker Prasad, P.W. 12 Hardeo Sah, P.W. 14 Jailal Prasad and P.W. 16 Raghunath Bhagat were tendered for cross-examination. Dr. Manoranjan Prasad Srivastawa who held autopsy on the dead body of Husaini Bhagat was examined as P.W. 19 while Dr. Baijnath Singh who examined the injuries on 4 out of 5 victims was examined as P.W. 20. The I.O., Shashi Kant Jha, was examined as P.W. 21. P.W. 7 Devendra Prasad was examined as formal witness. The remaining witnesses, - namely, P.W. 1 Baudhi Devi, P.W. 2 Jogendra Bhagat, P.W. 3 Jagarnath Bhagat, P.W. 5 Lakshman Mahto, P.W. 6 Bharat Thakur, P.W. 8 Ganeshi Bhagat, P.W. 11 Ram Ayodhya Prasad, P.W. 13 Ram Kishore Prasad, P.W. 15 Ghoghari Bhagat, P.W. 17 Akloo Bhagat and P.W. 18 Makhan Bhagat were examined on the point of occurrence. Out of them P.Ws. 1, 2, 3, 6, 8, 11, 13 and 18 were examined as eye witnesses. P.Ws. 1, 2, 3, 6 and 18 had, in fact, suffered injuries at the hands of the appellants. The appellants did not examine any witness in defence. At the end of the trial, the Trial Court convicted and sentenced the appe1lants in the manner indicated above.

5. Smt. Neelam Kumari, learned counsel for the appellants, submitted that the appellants have been falsely implicated in this case on account of enmity, most of the material witnesses are related to each other and therefore, not much reliance can be placed on their evidence. She also submitted that there was delay in lodging the case for which there is no explanation. The occurrence allegedly took place at 10 P.M. but the fardbeyan was lodged 10 hours thereafter at the place of occurrence without making any attempt to go to the police station.

6. It is true that some of the witnesses examined on the point of occurrence are related to the deceased