\y usao ^, Mo; 6 yi (Nb t^ Moo 0 .( e' a. cre' ai ffi '^ 1 u Ul ^ c. oo z •""f B:i ili ci, g ^y" 3" Siipt w <a G 'IS ' \ o . ~\ w ~ ': \ ^ B): &.»"y r i"3-.&'i t ,".,c '"•. w c ([> ""tu. EI", Ul^r 3 (£1 ^J" ;:?• ::r if-a" c^ B) o 11.1.1. IB »;lt Mo u i(B oio ::; t3" (D tn •g^ 3 c» .-( » i» si^U f^i ^tf" s s ^ri?' CHHATT ivislon Bench Hon!Die_snri Dnirenara fvljsnraana Hon'bjeahftDillS Raosaheb DeshmukiiiJJ; ADDe'lante .f^^s.^'i.^f-^ A^'-.-L^^ Ai^ 'I I ^i .->iA rf3?i,fS" ^rf-Uu'iiS'is&i M.y^Ssai 1'^U. i l^ Ul ^.W-yiS 1. Mutesh Singh @ Chhotu, S/o Mahesh <,. Kumar Barman, aged about 19 years, R/o •'•• Wa'd No.12, Mansndi'agarh 2. vOeepak Barman, S/o Kishanlai Barman, Sged about 19 years, R/o Ward No.13, iVlanendrasarh 3. uas' Raj Tiwari, S/o Madhusudan Tiwan', about "26 yea.rs, Rfo Vv'ard No.12, Manendraaar" 4. Ganesh Tiwari <3l Ganesha, S/o Madhu Sudhan Tiwari, aged about 21 vears, R/o VVard No.12, Pvianendragarh ASI Poiics Station, Manendragarh, Disti. v^rsus Respondent Stste of Chhattisqarh through — Police Statlon, Manendragarh, Distt. Korea (C.G.) ;riminai ADoeat under Cods of Crimi! Procedure. 1973 'ressnt; Shri V.C-.Ottaiwar with Shri Rakesh Pandey,counsel for the appeliants. Shri U.N.S.Deo. Government Advocate for the State/rssooncSent. JUDGMENT on this 2>o^ day of March, The Toiiowing judgment of the Court was ctslivered by DiSis Raosaheb Deshmukh. J.: This criminal aoDeal is directed aaainst the judgment dated 30- 12-2002 deiivered by the Additional Sessions Judge, Manendragarh, ' 'a-.. ^ District Korsa in Sessions Trial No.289/2002, whereby white asqultting co-accused Dhanraj Tiwari @ Dhannu, IVadhav Prasad @ iViukri and Anjan from a'l.chas^es, the appellants were convicted under Sections 147, 148. 302 read with Section 149, 302 read with Section 149 and under Section 324 read with Section 149 of the Sndian Penal Code and sentenced to rigorous imDrisonment for 1 vear <f. under Ssction 147 of the Ihdlarf'Penal Code, rigorous imprisonment for 2 vears undsr Section 148 of the Indtan Penal Code, Ilfs imprisonment with fine of Rs.1,000/- for sach offence under Sscnon 302 read with Section 149 ofthe !ndian Penai Code and to rigorous imprisonment for 2 years under Section 324 read with Section 149 of the !ndian Psnai Code. Fine of Rs.1,000/- each was also imposed for each offsnce under Section 302 read with Section 149 of the jndian Penal Code, in default of which, the aooeliants were to underao further riaorous imDrisonment for 5 months on each count. (2) !n order to appreciate the focai issus involved in this appeal, ws deem it necessan/ to narrate as to how the iaw was set into motion and po'ice Investigation progressed from day one. On 8-10- 2001 at 3:30 A.M. Ward-Boy Shiv Prasad Yadav of the Communiw Health Centre, IVianendragarh delivered a written memoranduin sent bv Dr. Suresh Tiwari at Police Station Manendragarh statins that one Nasir Khan, aged 23 years of Ward No.10, Manendragarh ivas brought to the hospitai at about 7:20 A.M. on 8-10-2001. Upon ihis, mera intimation Ex.P-22 was registered. Ward-Boy Shiv Prasad Yadav deliversd another memorandum of Dr. Suresh Tiwari at Poilce Statio" Manendraaarh at 8:35 A.M. which mentloned that one Rajesh ,B>11> 1« "'w '..^!.^.-,f.-; Thapa, sgsd 24 years had expired in the hospital at 7:50 A.M. on 8- 10-2001. Upon this, Merg intlrnation Ex.P-23 was registered. At 10:45 A.M. Snquest Ex.P-15 on the dead bodv of Nasir Khan and Ex.P-16 on the dead body of Rajesh Thapa was done. One Rakesh Thapa, brother ofthe deceased Rajesh Thapa informed the poiice at the'time of inquest.that his brother deceased Rajssh Thapa was <s. rsleased from iaii a wesk drior to his death and had left the house on the evenino of 7-10-2001, 'out did not return homs and it was learnt that some persons had assaulted Rajesh. Simiiar information was yiven by Kadir Khan, brother ofthe deceased Nasir Khan. He further informed the poiics thst at about 5 P.M. on 7-10-2001 Raiesh had come to their house and had taken Nasir with him. (3) On 8-10-2001, the dead body of Rajesh was sent at 9:30 A.M. to the Community Heaith Centre, Manendragarh for post mortsm examination. Dr. S.K.Tiwari, P.W.-13 conductsd the autopsy at 11:30 A.M. and found the foliowina inluries on Rajesh: (I') Incised wound 6x2x2 cms. !eft parietat region, {!!) Bruise facs at ieft side 20x15 cms. Deformity oresent, mandibie was fractured at left side. (!i!) 'ncised wound at right leg 2x1 cms. compound fracture of both bones. (IV) Two abrasions at back 1 to 2 cms. M Abrasion 2x1 cms. at riaht forehead. (*>/!) Bruise 20x18 cms. at left shouider. The fifth. sixth and seventh rsb were fractured at the iaterai aspect. PSeura was aiso Sacerated. Sn the oplnion of Dr. S.K.Tiwari, P.W.-13, duration of the Injuries found on the body of Rajesh was befaveen 6 to 12 hours prior to post mortsm examination. In his ^r"^ 1 :'y ^ :an.,-".,?' ^ w» iBCgl oplnion, cause of death of Rajesh was shock due to haemorrhage •k,, and brasn compression and asphyxia due to blood ciots in trachea. Nature of deat'" was ooined to be homicidai and duration between death and post mortem was ODined to be withln 6 hours. !t apDears that after sustaining the injuries Raiesh was ative for about 6 hours. This post mortem repprt is Ex.P-20. <1. (4) Dead body of Nasir was.,ateQ sent for autopsy to Community Health Centre, Manendragarh on 8-10-2001 at 10 A.M. Dr. S.N.Gupta, P.W.-10 conducted the autopsy at 11:15 A.M. on 8-10- 2001 and found the following iniuries on Naslr: (S) in Incissd wound 15cms.x5crnsx2.5cms deep present at t'ne teft side of neck and cheek below the ieft ear. skin subcutaneous tissues v/ere cut. Red in colour. Dried blood was present over the sar and nsck. Incised wound 8cms.x2cms. deep to bone •oresent at the left side of occioital region of fl^\ Ui'; (IV) (VI) (VI!) Linear cut 16cms. Length present at the right back. Skin cut, reddish in coiour. Obiiqueiy placed. Linear cut 15crns. Sength, deep to skin cut present at the left side of upper 1/3 of back, rsddish in colour. Abrasion Scms.x2cms. at left shoulder. reddish in coiour. Abrasion left middle 1/3 of back, reddlsh i.n colour 3crns.x2cms. in size. Reddish abrasion 3cms.x2cms. in size present at left elbow.. fVSII) Bruise 6cms.x4cms. in size at teft knee on the •l,, postero lateral aspect. Reddish in coiour. (!X) Diffused sweiling present at !eft elbow. (X) Diffused sweiltng prssent at right upper iip. . On internal exarrrination, all oraans v/ei-e Dale. Jugular Veins and carotid arteries at neck had escaped from being cut at incised wouno' No.1. In the opinion ,oF Dr. S.N.Gupta, probable time elapsed since death was about 8 to 12 tsows. It appears that death of Nasir had occurred not before midnight of 7-10-2001. All the injuriss on Nasir wers ante mortem in nature. injuries No.t, II, ill, IV were caused by hard, sharp and cuttlng object whiie Injuries No.V, V!, VII, Vlil, IX and X were caused by hard and biunt oisject. !n the opinion of Dr. S.N.Gupta, mode of death was hon-ilcidal due to shock and haemorrhaae as a resuit of extensive iniuries over neck and other oarts of the bodv. This oost mortem reDort is Ex.P-1 7. (5) At 9:05 P.IV!. on 8-10-2001, an offence under Section 302 of the Indian PenaS Code was registered by S.L.Maravi, S.H.O., Snspector, Pollce Station Manendragarh vide Ex.P-33. A perusal of ths F.I.R. Ex.P-33 shows that the assailants on Nasir and Rajesh were not known to the pollce tii! then. (6) Prior to the registration of F.I.R., Ex.P-33 under Section 302 of the Indian Penal Co.de at 9:05 PM. against unknown persons, Baba @ Basant, P.W.-1 was sent by Shri S.L.Maravi, P.W.-14 through reauisition Ex.P-ISA for medical examination. !t Is not known whether Baba @ Basant himself came to the poiice station or was brought by the'^oiice. It is aiso not on record when statement under ,^:'32S^ , I3al. ''!;> ,-,s- © Basant to accompany thern to Meena Bazar. On way, Rajesh asked Baba @ Basant to accompany him first to meet one Mastsr near Khsdia Taikies. Rajesh asked auto-rickshaw driver Jai Raj TI'A'ari to take the auto-rickshaw to Badansingh Mohalla. Then Rajesh asked Jai Raj Ti'.vari to wait till they returned. Jai Raj Tiwari refused to stay. Rajes.h asked Jai Raj Tiwari to accornpany them, but Jai Rai Tiwari aaain insssfed that he would not leavs the auto- rickshaw. Finaliy, Rajesh told Ja! Raj Tiwari that even if he would leave them, theywould catch him in the morning. After this, Rajesh, Nasir and Ba'oa @. Basant, P.W.-1 went to mest Master @ Anantial, P.W.-2. a teachsr of Marshal Art. Rajesh and Nasir Vi/ent inside the house of Anantsa!, P.W.-2 and conversed with him, white Baba @ Basant waited outside. After sometime Rajesh, Nasir and Baba @ Basant started returning towards the auto-rickshs.w. Ahead of th-s fieid near the siope, appellant No.4, Ganesh Twari, brother of Jal Raj Tiwari. aDDeliant No.3 aave a fist biow to Baba @ Basant near the right eye and asked why he was moving aiong with Rajesh and Nasir and doing Dadagiri. At this juncture, someone dealt a Lathi b!ow to Saba @. Basant from behind. Jai Raj Tiwari took out a Sword and started assaulting Rajesh and Nasir. At this juncture, acquitted accused Dhanraj Tiwari, Madhav Prasad @ Mukri and appetlant No.2, Deepak Barman came there. Another person Sunl! Sv/eeper, who was not arrayed as an accused, also arrived at the spot with them. Ba.ba -®.Basant toid the Doiice that he knew accused Dhanraj Tiwari, Madhav Prasad @. Muta-i and Deepak Barman as a!so Suni! Sweeper very well. Al! the above mentioned 4 persons, who were carrying Lathi and Rod were aiso accompanied wsth 2-3 persons, vc'ho wers not known to Baba @. Basant but whom he couid identify. A!! these persons started assaulting Nasir, Rajesh and Baba @ Basant Vv'hiie Jal Raj Tiwari vvas.exhorting the assaiiants not to spare the trio, i.e., Nasir, Rajesh and Baba @ Basant and to kil! them. Baba @ Basant started shouting for help and ran towards Tanki Dafai Mohalia. On hearing hts shouts, Anantial, P.W.-2 accompanied by sorne inhabitants of the locdlit/'came to the spot and intervened in •<,. the fight. Statement of Baba @:Basant to the potice further shows that he along with Nasir and Rajesh did not commit any rob. Jal Raj TKs/ari did not assault him. He aiso told the polics that Jai Raj Tlwari had iodged a report in the poiice station. (8) Having got a clue as to the assailants on Rajesh, Nasir and Ba'oa @ Sasant, the poiice arrested appellantNo.1, Mukesh Singh on 12-10-2001, appeliant No.2, Deepak Barman on 19-10-2001, appe!!ant No.3, Jai Raj Tiwari and appeliant No.4, Ganesh Tiwari on 22-10-2001. On 19-10-2001, on memorandum, one Lathi was seized from appeiiant No.2, Deepak Barman. On 23-10-2001, on memorandum, one Tangi, auto-rickshaw and blood stained ful! pant and shirt v/ere seized from aDDellant No.3. Jai Rai Tiwari. Durinc investigation motive for the appellants to commit murder of Nasir and Rajesh or to assauit Baba @. Basant could not bs unearthed. No effort was made during investigation to find out as to who had taken Nasir and Rajesh to the hospital. The written requisitions sent by Dr. Suresh Tiwari wsre not produced with the documents under Section 173 Cr.P.C. No effort 'was rnade to im'estlaate whether dsceased Rajesh or the person bringing him to the hospital 'nad made any ^4 '"aiss aieii:4: statement to Dr. Suresh Tiwari regarding the assailants while admitting Rajesh at the hospitai. No test ident'lfication parade was held. Slnce, accordina tp the reoort Ex.P-35 of the Forensic Science Laboratory, the stains on the articies seized from appellant No.2, Dsepak Barman and appeitant No.3, Jai Raj Tiwari \iyere disintsgrated, the articles vvere not sent to the Seroiogist for <i confirmation of human bibod. !n this slipshod manner, the \. ' investigatlon vi/as cornpleted and the appeiiants were prosecuted with co-accused Dhanraj Tiwari, Madhav Prasad @ Mukri and Anjan. \s/ The appeliants abjured the guilt, pleaded innocence and fai'se irnpiication and led no evidence in defence. (10) The Drosecution exarnined as manv as 15 witnesses. Their star witness is Baba @. Basant. P.W.-1. Anantlal. P.W.-2 deoosed that Nasir, Rajesh and Baba @. Basant visited his house at 9 P.M. on 7-10-2001 and leS thereafter. White he was sitting for food, he heard shouts Tor heip and ran with some persons of Dafai Mohalia to find that 3aba @ Basant came running towards him and held his feet. On being asked, Baba @ Basant did not say anything and ran away. At a distance, Nasir and Rajesh were iying on the ground. Some assailants, who had fied on seeing them couid not be identified. He had asked Baba @. Basant to inform the relatives of Rajesh and Nasir. Anantiai, P.W.-2 deposed that he had gone to the police station Vr'ith the brother of deceased Nasir and Raiesh who had todged a report. According to him.policeh.ad gone to the spot and had taken Raiesh and Nasir to the hosoital. Thls witness was *•• ^as']-,.. '*A '.1. V'W^ ij in declared hostile bv the prosecution and statsd in cross-examination that due to darkness visibility was very poor at the spot. (11) P.W.-3 Shyamlai Pandey, P.W.-4 Uma and P.W.-5 Shantibai turned hostile and did not support the prosecution case. Jahira Begum P.W.-6, Shanti Thapa P.W.-7 also did not support the prosecution story. Mohd..Nisa^. P.W.-8 stated that 2 to 3 days after the occurrence, Baba @ BasanS had told him that Jai Ra] Tiwari, his brother and 2 to 4 oersons accomDanving them had assaulted Rajesh, Nasir and him. Girish Shrivastava P.W.-9 and Hussain P.Vtf.- 11 were witnesses of inquest Ex.P-15 and Ex.P-16 on the dead body of Nasir and Rajesh. Dr. S.N.Gupta P.W.-10 proved the autopsy report on the body of Nasir on 8-10-2001; Vishwaranjan Sengupta P.W.-12 aiso tumed hostile and did not support the prosecution case. Dr. Suresh Ti'A'ari, P.W.-13 proved the post mortem report of deceased Rajesh. Inspector S.L.Maravi, P.W.-14 completed the forrnasity of proving merg intimation, inquest, memorandums and seizure memos and admittsd in cross-examination that appellant No.3 Jai Raj Tiwari had iodgsd a report against Nasir, Rajesh and Baba © Basant in the police station regarding assauit and robbery. He further admitted that Raiesh and Nasir were detained under the Nationai Security Act as being hooligans they wers a menace and had rnany enemies. He adm'itied in paragraph 16 that he did not investiaate as to whsther thsre was a fight between Baba @ Basant and Raiesh and Nasir. He also deposed that he did not investigate as to why Baba• @ Basant did not lodge any report after the occurrence and came to the police station after considerabie deiay, 11 i.e., on 8-10-2001. No explanation was offered as to whether Baba Sasant had, before belng sent for medical examlnation before 5:10 P.M. on S-10-2001, disdosed the names of the assailants on Nasir an-d Rajesh. J.S.Mara'4, Sub-inspector, P.W.-15 pu!led the shutters down by formai.ly deposing about the memorandum of the accused persons and recovery made from them. '^ . (12) T.he iearned tria! Judge relysng on the testimony of Dr. Suresh Tiwari, P.W.-13 and Dr. S.N.Gupta, P.W.-10 recorded a finding that Nasir and Raiesh died a homicidal death whiie Baba @. Basant sustained simple injuries by a sharp pointed weapon as also by a hard and blunt obiect. The learned tria! Judge also took into consideration the admission of Baba @ Basant, P.W.-1 that at the place of occurrence, it was pitch dark and, therefore, he could not see ths assailants. The learned tria! Judge aiso considered that no reason was asslgned by Baba @ Basant for not iodging the report or informing anybody about the incident and going straight to his house. The iearned trial Judge feit that it was noi sxpected of any person who had sustained injuries to go straight to the police or to inform at the house of the 2 deceased persons as such a witness would be under aaonv due to the iniuries sustained bv hlrn and wouid first think of his safet/. The learned triai Judge felt that tsstimony of Baba Basant, P.V/.-1 couid not be brushed aside mere'v on the ground that he did not' lodge any report or because he did not inform at the houses of his companions, i.e., Rajesh and Naslr. Since Baba @ Basant c'nose to imDlicate oniv the apDeiiants Mukesh Sinah, DeeDak iarman, Jai Raj Tiwari and Ganesh Tiwarl and not the co-accused, "'""->»x,,. "^ 12 l.e., Dhanraj Tiwari, Madhav Prasad @ Mukri and Anjan, the learned tria! Judge convicted and sentenced the appellants for the offences rnentioned in paragraph 1 supra whiie acquitting co-accused Dhanraj Tiwari, Madhav Prasad @. Mukri and Ansan. (13) Shri V.C.Ottaiwar, learned counsei for the appeilants argued that the learned triai Judge erred in relying on the testimony of Babs @. Basant, P.W.-1, a wholly unrqliabie witness. Th®prosecution did not establish anv motive for the apoellants to commit murder of Nasir and Rajesh or to assault Baba @. Basant. Taking into consideration the testimony of AnantSal, P.W.-2 and the fact that Baba @ Basant did not lodge any report at the poiice statlon or inform the retatives of Nasir and. Rajesh and surface till 8-10-2001 the needle of suspicton strongiv revolved around Baba @ Basant, who was 'with the deceased persons at ths tlme of occurrence. It v/as also urged by the learned counsel for the appe!!ants that the testimony of Baba @ Basant could not be relied on because despite naming Dhanraj Tiwari, Madhav Prasad @ Mukri, Anjan and Sunil as the assaiiants on Nasir and Rajesh in his statement under Section 161 Cr.P.C., he did not depose against them before the learned triai Judae. Thus. Saba @ Basant, P.W.-1 had adopted the method of pick and choose against the appeilants by omitting to depose about the acquitted accused Dhanraj Tiwari, Madhav Prasad @ Mukri and Anjan and, therefore. • it was unsafe to ieave the fate of the aDpellants in the hands of such a witness. Reiiance was piaced on Rewaram K.aS'ioram vs. State of Madhya Prasjesh, 1977 MPU 64' It was strenuousty urged by learned counsel for the appeilants that the ^1-3^'^ 13 :s» appellants had absolutelv no motive to commlt the murder of Nasir •I,, and Rajesh and had no ill-will or axe to grind against Baba @ Basant. Therefore, the fact that despite being injured, Baba @ Basant did not inform anybody about the incident or iodgs any report or even go to the hospitai on his own for treatment would render his testimony whoiiy unworthy of credence. Reliance was piaced on State of •f.i. vs. Raju Potphode, (2007) 11 SCC 261. The adrnission In paragraph 22 by Baba @ Basant that due to darkness hs couid not see as to who had assaulted whom rendered his testimony of assault by the appellants on Nasir and Rajesh completeiy unreiiable. (14) !t was also argued by the iearned counsel for the appelSants that the investigatlng officer dld not investigafe into the report lodged bv Dhanrai ThA'ari reaarding assauSt and robberv against Nasir, Rajesh and Baba @ Basant and also did not enquire as to why Baba @ Basant did not lodge any report at the poiice station or go to the hospitai despite being injured. Learned counsei for the appeilants also argued that no attempt was made by the investigating officer to enauire as to who had taten Nasir and Rajesh to the Comrnuniti/ Hea!th Centre, Manendragarh and whether Rajesh had given any statement to Dr. Suresh Tiv/ari, P.W.-13 at the time of hospitallsation since the Merg intirnation Ex.P-23 revealed that Rajesh was alive on admission, but died at 7:50 A.M. on 8-10-2001. On these premises, learned counsel for the aDoeiiants argued that no reiiance coutd be placed on the testimony of Baba @ Basant and the appellants 'A'ers entltied to acauitta! under benefit of doubt. -_,^^-^ .llpfc;; I fi..,. ^-f'v /./ •.-..-'..•9''" ^M\t (15) On the other hand, Shri U.N.S.Deo, iearned Governrnent Aavocate for the State/respondent argued in support of the impugned judgment and submitted that the maxim fateus in uno fateus in omni bus was a myth and had long been expioded. it was urged that rnerely because the testimony of Baba @ Basant, P.W.-1 was partly not trushiyorthy, his entire testimony could not be rejected. Reiiance was placed on State of K'amataka vs. Papanaika and others, (2004)13 SCC 180. It was argued that Baba @ Basant, P.W.-1 was an injured witness whose presence on the spot with Rajesh and Nasir v>'as not in question. Therefore, the learned trial Judge rightiy convicted the aoDeilants on the sote testimonv of Baba @ Basant. P.W.-1. (16) Havlng considered the rival submissions, we have perused the record vi'lth utmost cireumspection. The testimony of a witness who sustains injuries during the occurrence lends assurance about the presence of the witness at the place of occurrence and is not the touchstone for his credibiiitv which has to be tested on the basis of facts elicited durina cross-examination, on the basis of natural human conduct. probabilities and other rele'.'ant circumstances. The yrosecution has rniserablv failed to show the existence of anv motive for the appellants to commit murder of Rajesh and Nasir or to assauit Saba @. Basant. The deDiorable manner in v/hich investlgation into the offence of doubie murder was conducted by Shri S.L.Maravi, Inspector, P.VV.-14 and Shri J.S.Maravi, Sub-lnspector, P.W.-15 shocks our conscience. It is beyond comprehension how the investigating oflTcer could rernain obllvious for unearihing the fact as 15 to v^ho had taken R^jesh and Nasir to the hospitai and when, and v/hether Rajesh had, on being hospifalised, named the assailants to the doctor. The written requisition sent by Dr. Suresh Tiwari regarding dsat'n o* Ra^esh and Nasir were also not produced by the prosecution. Inspector S.L.Maravi P.W.-14 admitted that a report had been 'odged by Jai Raj Tiwari at the police station regarding robbery <?. and assauit by Rajesh, Nasir and Baba @ Basant, but h®did not investigate it. Shri S.L.Maravl aSso did not probe into the reason why Baba @. Basant v/ent underaround immediateiy after the occurrence and did not even go to the hospitai for treatment of his injuries or to the poiics station for lodging a report when two of his companions had been brutalfy assauSted by persons known to him. No expianatton is forthcoming if Baba @ Basant had witnessed the assauit on Nasir and Rajesh by the appei'iants and had susta'ined injuries during such assauit, why is that the requisition Ex.P-18A for his rnedico-legai examination did not mention a wora' about his assailants. (17) Conviction of the appellants rests solely on the testimony of Saba @ Basant, P.W.-1 who adopted a pick and choose method and did not depose about the invoivement of Dhanraj Tiwari, Mad'nav Prasad @. Mukri and Anj'an in the occurrence, despite naming them as the assaiiants in his statement under section 161 of the Cr.P.C. Tha tootii he testimony of Baba @ Basant has, therefore, to be examined with 1 utmost caution. in paragraph 3 of his testimony Baba @ Basant did not attribute 'anv overt act to the apoellants Mukesh, Deepak and Jai Raj. He did not depose as to what weapon was used by these appellants at the time\of occurrence. In his cross-examination paragraph 11, he admitted that it was dark at the piace of occurrence. in Daraaraoh 22 he further admitted that due to darkness he could not see as to who assaulted whom. in paragraph 12, he further admitted that 'ne dld not see as to w'ho 'nad assaultsd him by a Lathi on the (18) The natura! conduct of a witness who had sustained as many as 7 iniuries besides witnessina the brutai assaurt on tf/o of his cornpanions would be that