- (1.) This appeal is directed against the judgment and order of conviction and sentence dated 19.12.2000 passed by the Additional Sessions Judge, Simdega, in Sessions Trial No. 268 of 1996 whereby the Appellants have been convicted and sentenced to undergo imprisonment for life under Section 302/34 IPC. 2 Prosecution case, in brief, is that fard beyan was given by the informant i.e. the father of the deceased Bisambar Manjhi, Head master of a primary school on 10.7.1996 at about 1.00 a.m narrating the prosecution story that he had gone to his Primary School on Karwajore in the morning where he had been posted as Head Master. He returned to his home at about 3.30. p.m. and he saw the occurrence that there had been a quarrel between his son Bhubneshwar Manjhi and his brother Prabhu Manjhi on the one hand, and accused Appellants the relatives of the informant PW7 on the other hand, for distribution of fruits of kusum plucked from the tree(s). After informant's intervention in the melee, the scuffle was quelled down and the 'Appellants thereafter threatened that they would kill the informant's son Bhubneswar Manjhi and his brother Prabhu Manjhi. At about. 4.00 p.m. he saw that in front of the house of the Neelamber Pradhan near mango tree the accused Appellants Pradhuman Manjhi, Rameshwar Manjhi, and Madan Manjhi were holding farsas in their hands. The Appellant Pradhuman Manjhi assaulted Prabhu Manjhi on his neck by farsa blow and the Appellant Rameshwar Manjhi also gave a farsa blow on the neck of Bhubneshwar Manjhi. The Appellant Madan Manjhi (he died during the pendency of the appeal) assaulted both the deceased Prabhu Manjhi and Bhunbneshwar Manjhi by farsa blow on their necks. Consequent upon' receiving the injuries on their persons, both of them succumbed to their injuries at the spot. Simdega PS case No. 71 of 1996 was registered at the Police Station. Investigation was started by the police. After conclusion of the investigation, charge sheet against the Appellants was submitted before the court. 3 The Appellants case was committed to the court of sessions and charge was framed against the Appellants and they denied the charges and claimed trial. 4. The prosecution has examined 8 witnesses in support of the prosecution story. PW3 Dinu Dhurwa, PW4 Satmati Devi alias Paura Devi, wife of the deceased Prabhu Manhi and informant PW7 Bishambar Manjhi, the father of the deceased Bhuneshwar Manjhi was examined and they claimed that they were all eye witnesses of the occurrence. PW1 is. Nilambar Pradhan who is said to be the witness of recovery of the weapons used in the commission of the offence. He was declared hostile by the prosecution. PW5 Rana Ram Badan Singh is the investigating officer of the case. PW8 is Dr. K. D. Choudury who had conducted autopsy on the dead bodies of the deceased on 10.7.1996 at about 1.00 p.m. PW2 is, Harihar Pradhan who was declared hostile by the prosecution and he did not support the prosecution version. PW6 is Jyoti Prakash Tirkey. He is witness on the inquest report. 5 After conclusion of the trial, the Appellants made denial of the entire allegations made against the Appellants. They pleaded that they are innocent and have been falsely implicated in the case due to land dispute. 6 The Appellants have not adduced any evidence, oral or documentary in support of their defence. 7 After conclusion of the trial and hearing of the parties and on perusal of the record, the trial court convicted the Appellants and sentenced them as indicated above. 8 It is not in dispute that the deceased Prabhu Manjhi and Bhubneshwar Manjhi died on 9.7.1996 at about 4. p.m. at the spot as indicated by the prosecution. The prosecution has also examined Dr. K.D. Choudhury PW8 who conducted autopsy on 10.7.1996 at about 1.15. p.m. on the dead body of the deceased. He found the following injuries on the dead body of Prabbu Manjhi: External injuries: Incised wound 4"x4"x3" situated at the right side of the neck extending from lateral side of neck to back of the neck with fracture of cervical vertebra cutting skin, soft tissues, muscles of neck, carodid artery, jugular vein, vapus nerve and cutting trachea and oesophagus partially. The membranes of brain were pale in colour, excessive haemorrhage from the right side of the neck 2. injury was ante mortem and grievous in nature and, was caused by any sharp cutting weapon like FARSA. On the same day at about 1.00 p.m. Dr. K.D. Choudhury PW8 conducted post mortem examination on the dead body of Bhuneshwar Manjhi and found the following injuries.: External injuries: A big incised wound 6"xi"x4" situated on the right side of the neck extending from anterior side of the neck to the back of the neck, cutting skin, soft tissue, large blood vessels, such as right carodid, artery and right jugular vein of neck, superior tyroid artery, muscle of neck of right side, vagus nerve, trachea below vocal cord and oesophagus and cutting body of cervical vertebra. Complete amputation of right little finger, right ring finger and right middle finger from its metaearpo malanquial joint of right hand; PW8 Dr. K.D. Choudhury further proved the Post Mortem Reports (Ext.6 and 6/1). He has further opined that the injuries on the person of the deceased was ante mortem in nature and would have been caused by a sharp cutting weapon, like farsa, and it was further opined that the death of both the deceased would have been caused due to partial amputation of necks and excessive haemorrhage. Duration of death was assessed to be 24 hours. The prosecution has also examined the eye witnesses of the incident. PW3 Demu Dhurwa and PW4 Satmati Devi @ Paura Devi were produced by the prosecution and they have categorically stated that the Appellants caused the death of both the deceased on the time and place as indicated by the prosecution. The deceased succumbed to their injuries at the spot. Thus, it is amply established that Prabhu Manjhi and Bhubneshwar Manjhi were killed on 10.7.96 at about 4 p.m. as indicated by the prosecution and the death of the deceased was homicidal. 9 Now, we have to examine as to who is the author of the injuries on the person of the deceased? Ac cording to the prosecution, injuries were caused by the Appellants by farsa blows on the necks of both the, deceased Prabhu Manjhi and Bishambar Manjhi who succumbed to their injuries at the spot. According to the Appellants, they have been falsely implicated in the case and they are innocent. Prosecution had examined PW4 Satmati Devi alias Paura Devi, the wife of the deceased, who stated in her evidence that on the date of incident at about 4.00 p.m. in front of the house PW1 Nilambar Pradhan, she had seen that accused Appellant Praduman Manjhi had been holding a balua in his hand and he assaulted Mahesh (Prabhu Manjhi) with the balua as a result of which, he died at the spot and thereafter the Appellants Rameshwar Manjhi and Madan Manjhi (Bishambar Manjhi) caught hold of her husband Prabhu Manjhi and the Appellant Praduman Manjhi cut his neck by balua, - but it could not be severed entirely from the body,- as a result of which he died at the spot. PW7 the informant Bisambhar Manjhi is the father of the deceased Bhubneshwar Manjhi. He has stated in his evidence that on 9.7.1996 in the morning he had gone to school and returned at 3.30 p.m. When he returned home/he saw that there was a quarrel among the Appellants and both the deceased for distribution of kusum fruits. When the informant PW7 Bisambhar Manjhi tried to settle the matter, the Appellants threatened both the deceased Praduman Manjhi and Prabhu Manjhi with dire consequences and to kill them. He pacified the matter at the spot between both the parties. Thereafter, he left from the spot and proceeded towards his house. Thereafter he again came back to call Bhubaneshwar' Manjhi and. Prabhu Manjhi (cousin). Then, he saw that Appellant Rameshwar Manjhi brought a farsa from his house. Appellant Praduman Manjhi was also holding a farsa in his hand and Madan Manjhi Appellant exhorted him to kill the deceased. Thereupon, Rameshwar Manjhi, and Praduman Manjhi Appellants assaulted the deceased by the weapons which they were holding in their hands. Appellant Rameshwar Manjhi stuck a farsa blow on the neck of Bhubaneshwar Manjhi as a result of which, substantial portion of his neck was cut and he fell down on the ground. Praduman Manjhi Appellant also assaulted upon the neck of Prabhu Manjhi by farsa and his neck was cut substantially, but it did not severe from his body. He also fell down on the 'ground. Thereafter, Madan Manjhi Appellant took the farsa from the hand of Praduman Manjhi and assaulted upon the hand of Bhubaneshwar Manjhi as a result of which his fingers were cut and he (PW7) saw the incident from a distance of about 10 to 15 metres from the place of occurrence. The prosecution has also examined PW3 Dinu Dhurwa as independent eye witnesses. He has stated that on the date of the incident at about 4.p.m. the Appellants plucked fruits of kusum tree and the deceased demanded shares in the said fruits. When the deceased demanded shares, the Appellant Praduman Manjhi immediately gave a farsa blow on the neck of the deceased Bhuneshwar Manjhi as a result of which he fell down on the ground and succumbed to his injuires. The Appellants Madan Manjhji and Rameshwar Manjhi caught hold of the deceased; Prabhu Manjhi and Praduman Manjhi Appellant gave a farsa blow on his neck as a result of which he fell down on the ground. Thereafter, the Appellants Praduman and Rameshwar Manjhi cut his neck, but it' could not be completely severed from his body. The deceased died at the spot. He identified both the Appellants Pradhuman Manjhi and Rameshwar Manjhi on the dock. PW3 Denu Dhurwa claims to be an eye witness to the occurrence and states further that the incident occurred in front of the house of PW1 Lilambar Pradhan. 10 After appreciation of the evidence of the eye witnesses, the learned trial court has come to the conclusion that the evidence of PW7 informant cannot be relied upon, beyond suspicion, as an eye witness of the occurrence. The trial court has held in its findings that PW3 Dinu Dhurwa has stated in his cross examination that PW7 Bisambar Manjhi had gone to school and that he was not present at the spot. He went to the Police Station from the school itself and came to the place of occurrence in the night at 9.00 10 p. m. According to the PW3 Denu Dhurwa, PW7 is not witness to the occurrence and the trial court has further held that PW7 himself has stated that he had gone to attend the school which is situated at a distance of 5 to 7 kms. The incident occurred on Tuesday when the school was open and he came to his house before closing of the school and his presence was doubted by the trial court. We are also of the view that the evidence of the informant PW7 who claims to be an eye witness is not cogent and credible and we are completely in agreement with the findings recorded by the trial court. 11. Learned Counsel for the Appellants further contended that PW4 Satmati Devi alias Paura Devi, the widow of the deceased Prabhu Manjhi, has stated in her "cross examination that the Police. (investigating officer PW5) had examined her after five days of-the occurrence. Learned Counsel contended that the recording of the statement of PW4 Satmati Devi alias Paura Devi under Section 161 Code of Criminal Procedure after four days is fatal to the prosecution. Learned Counsel for the State refuted the contention and contended that there is no enmity of the accused Appellants with the investigating officer PW5 who has stated in his evidence that PW4 Satmati Devi alias Paura Devi had been examined by him on the very same night of the occurrence. He further contended that the delayed examination of the witness is not fatal to the prosecution. The. defence counsel had not put any question to the investigating officer PW5 during the trial about the delayed examination of PW4 Satmati Devi alias Paura Devi. It is a settled position of law that unless the investigating officer is specifically asked to explain the delay:n examination of the prosecution witness, the defence cannot take the benefit thereof. It cannot be laid down, as a rule of universal application, that if there is delay in the examination of a particular witness, the prosecution version becomes suspect. It would depend upon several other factors. The Apex Court in the case of State of U.P. v. Satish, 2005 3 SCC 114 has held asunder: 18. As regards delayed examination of certain witnesses, this Court in several decisions has held that unless the investigating officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage there-from. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the court accepts the same as plausible, there is no reason to interfere with the conclusion. (See Ranbir v. State of Punjab, 1973 AIR(SC) 1409), Bodhraj v. State of J & K, 2002 8 SCC 45) and Banti v. State of M.P, 2004 1 SCC 414). 20. It is to be noted that the explanation when offered by the IO on being questioned on the aspect of delayed examination by the accused has to be tested by the court on the touchstone of credibility. If the explanation is plausible then no adverse inference can be drawn. On the other hand, if the explanation is found to be implausible, certainly the court can consider it to be one of the factors to affect credibility of the witnesses who were examined belatedly. It may not. have any effect on the credibility of the prosecution's evidence tendered by the other witnesses. 12. Apart from that, in the present case, the investigating officer has specifically stated that he had taken her statement on the very same day of the occurrence. PW4 Satmati Devi who is an illiterate lady, is the widow of one of the deceased and she lives in the, village; the incident occurred on 9th of July, 1996 and the evidence was recorded in the month of May, 1997 after nine months of the incident. It cannot be disputed that with the passage of time, the memory of a witness becomes faint, dim and obscure, and it is difficult for the witness to recall any event with all precision and exactness resulting in some minor contradictions or inconsistencies which would not make his evidence totally unbelievable. The death of the husband of PW4 Satmati Devi was caused by the Appellants; she would have been in shock and horror and she would not be able to give the exact date and time about recording of her statement by the investigating officer. Apart from that, the investigating officer PW5 has categorically stated that he had recorded her statement in the night on the very same day of the incident. Thus, there is no material to disbelieve the evidence of the investigating officer PW5. The defence has not given any suggestion to the investigating officer that he (PW5) had not examined this witness on the same night. Apart from it. PW4 Satmati Devi alias Paura Devi is also named in the FIR. Her presence at the spot cannot be doubted. Thus, the contention of the learned Counsel for the Appellants is untenable. 13. Learned Counsel for the Appellants further contended that PW4 Satmati Devi @ Paura Devi is the widow of one of the deceased Prabhu Manjhi and PW7 Bisambar Manjhi is the father of the other deceased Bhuneshwar Manjhi. Deceased Prabhu Manjhi is the cousin of the informant PW7. So, they are related, interested and partisan witnesses and their evidence cannot be relied upon unless it is corroborated by independent source or witnesses. It is a settled position of law that if the witnesses are related with each other and they are, partisan witnesses, their evidence cannot be discarded simply for the reason that they are related to each other. It is also a settled position of law that the eye witnesses being relatives of the deceased, it would be their endeavour to see that the real culprits are punished and they would not like to implicate a wrong and innocent person in the crime so as to allow the real culprits to go unpunished. It would therefore be unreasonable to contend that the evidence given by the witness (PW4) should be discarded only on the ground that it is the evidence of a partisan and interested witness. Mechanical rejection of such evidence on the sole ground that they are related and interested witness would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence But the plea that such evidence being of a partisan witness should be rejected, cannot be accepted as correct. As we have already pointed out. the evidence of the informant PW7 with regard to the fact that he is an eye witness to the occurrence is not cogent and credible. In the instant case, PW3 Dinu Dhurwa is also said to be the independent eye witness. PW3 was present at the place and time of the occurrence; the incident occurred in front of the house of PW1 Nilambar Pradhan. At the time of the incident, PW1 Nilambar was not present in his house. Perusal of the evidence of Dinu Dhurwa PW3 reveals that he is an independent witness. There is no cross examination on (he point that he is inimical to the Appellants, or friendly to the deceased/informant party. No suggestion to that effect was given to the said witness. Thus, he is the eye witness. He has corroborated the factum of the incident as also the evidence of PW4 Satmati Devi. Learned Counsel for the Appellants pointed but that in his cross examination, PW3 Dinu Dhurwa has stated that at the time of occurrence, he was in the house of PW1 Nilamber Pradhan and in front of his house, the occurrence occurred. He has further stated that he had not given any statement before the police that he had seen the occurrence. Learned Counsel for the Appellants pointed out that his evidence should be discarded because admittedly he is not an eye witness to the occurrence and he was produced before the court by the prosecution after an inordinate delay and that if he would have been art eye witness to the incident, he would have been examined by the investigating officer PW5. On the other hand, learned Counsel for the State contended that the statements of the P Ws. 3 and 4 were, recorded in the case diary. The investigating officer PWS was produced before the court and there is no specific mention that he had not examined the said witness (PW3) during the course of investigation. The fard beyan was recorded on 10.7.1996 at 10.00 a.m. which clearly indicates that the names of Dinu Dhurwa PW3 and Stmati Devi PW4 had been indicated in the said fard beyart as an eye witness of the incident. Thus, it is apparent from the perusal of the fard beyan that they were present at the spot. Therefore, the presence of P Ws 3 and 4 at the spot cannot be doubted. 14. In the case of Narmedeshwar Pradhan v. State of Bihar,1998 3 PatLJR 739), it has been held that there is no such proposition of law or prudence that only because the investigating officer did not take care in a particular case to reduce the statement in writing during the course of investigation, the evidence of such witness when produced in court should be discarded. Failure on the part of the investigation officer to record the statement of a particular witness in the case diary cannot be a ground to discard his testimony altogether for that reason. PW3 Dinu Dhurwa is not inimical to the Appellants. There is no reason why he will come forward' to claim himself to be an eye witness if he was not present at the spot. We do not see any reason to disbelieve his evidence on this ground alone. 15. Learned Counsel for the Appellants contended that the presence of the eye witness PW3 and 4 Dinu and Satmati is very doubtful at the spot, because PW4 being the wife, of the deceased she did not intervene in the melee and rescue her husband and' that though other family members were also present, they did not try to save the deceased and Dinu Dhurwa PW3 also did not intervene in the melee. Learned Counsel for the State refuted the contention. Strictly speaking, human behaviour varies from persons to persons; different people behave and react differently in different situations. Human behaviour depends upon facts of each case; how a person react and behaves in particular situation can never be predicted. Every person who witnesses a serious crime, reacts in his own way; some are stunned; some are speechless; some would see the incident whereas some would flee from the spot. There is no set of rule of natural conduct. Appellants were armed with deadly weapons. It is natural that an eye witness could not come forward to save the deceased, particularly when the Appellants were causing murderous assault upon the deceased. Only on that ground that the eye witness remained silent and he did not interfere in the melee cannot be concluded that they were not present at the spot. 16. In the case of Ashok Kumar Pandey v. State of Delhi, 2002 4 SCC 76) the father of the deceased was an eye witness to the incident and he was not armed. The father of the deceased heard the cries of his daughter whereupon he immediately rushed to the place of occurrence and found that the accused was inflicting stab wounds on his daughter with a knife while she was bleeding profusely. The accused had come with knife in his hand and the father as well as the other eye witnesses could not intervene, in the melee. The accused ran away from the spot. It was contended that the accused Appellant inflicted injuries on the person of his daughter and the father did not participate to rescue her. It was submitted that the conduct of the father was unnatural and it shows that he was not present at the spot. The Hon'ble apex court negated the contention and held that it cannot be said to be an unnatural conduct if he could not participate to save the life of his daughter being unarmed and normally could not have risked his life at the hands of the accused which was imminent. 17. In the case of Balbir Singh v. State of Punjab and Ors., 2005 9 SCC 299), the eye witness was the son of the deceased. The son and his father were coming back from the field. The accused Appellant emerged near the field and inflicted fatal injuries on the person of the deceased with deadly weapons. Father died at the spot. It was contended that since the son of the deceased did not intervene in the fight, his presence was doubtful. The Hon'ble Apex court has held that the presence of the son of the deceased cannot be disbelieved for not having intervened in the melee. In the case in hand, there were three assailants who were armed with weapons. Thus it is apparent from the evidence on record in the instant case that the Appellants were holding deadly weapons by which they killed the deceased by cutting their neck brutally. Thus, in these circumstances, nobody would like to come forward and take risk of being killed at the spot and it cannot be held that since the eye witnesses or other persons did not intervene in the melee, their evidence should be discarded and it should be concluded that they were not present at the spot. We do not find any force in the contention of the learned Counsel for the Appellants. 18. Learned Counsel 'appearing for the prosecution contended that there are certain major contradictions in the testimony of the eye witnesses with regard to the manner of incident. Learned Counsel further pointed out that PW4 Satmati Devi alias Paura Devi and PW3 Dinu Dhurwa have deposed that both the deceased persons were standing when the assault was committed upon them, whereas PW7 Bishambar Manjhi has stated that they were sitting when the assault was committed. It was further pointed out that according to the inquest report, the deceased Bhuneshwar's head was lying towards north while according to PW3 Dinu Dhurwa the head of the deceased Bhuneshwar Manjhi was lying towards west, while according to PW7 Bishambar Manjhi, his head was towards north-east. According to the inquest report, the dead body of Prabhu Manjhi was lying in such a manner that the head was failing towards east. PW3 Dinu Dhurwa has stated that after the incident, the head of the deceased Prabhu was towards west, while according to PW4 Satmati Devi alias Paura Devi, his head was towards east. Learned Counsel pointed out that the said contradiction falsifies the presence of the eye witnesses at the spot. He further pointed out that PW3 Dinu Dhurwa and PW4 Satmati Devi @ Paura Devi have stated that Bhuneshwar Manjhi was given a farsa (balua) blow by the accused Appellant Praduman Manjhi, whereas according to the informant PW7, the farsa blow was given by both the accused Appellants on his neck. We have examined the evidence of the eye witnesses. The contradictions as pointed out by the learned Counsel are of no avail to the defence. There is no dispute about the death of the two deceased at, the spot. It is also admitted to all witnesses that PW4 Paura, Devi is the widow of the deceased Prabhu Manjhi and it is also in the evidence of the prosecution that she was peeling grass at a distance of 50 yards from the place of the occurrence from where she saw the gruesome incident. PW4 Paura Devi as well as PW3 Dinu Dhurwa have stated this fact. We have already discussed above that the evidence of the informant PW7 with regard to the presence at the time of the incident is doubtful.. The evidence of the witnesses has been recorded after one year of the incident and as such due to lapse of memory, the contradictions are bound to occur in the testimony of the truthful witnesses. Normally, discrepancy always occurs in the evidence of the truthful witness due to normal error of observation, error of memory due to lapse of time and due to mental disposition such as shock and horror at the time of the occurrence and those are always there howsoever honest and truthful a witness may be. It is pertinent to mention here that when a witness appears before the court, some times he may not stand before a skillful cross examiner, because he is a bucolic person and is not able to understand the questions put to him by the skillful cross examiner and at times, under stress of cross examination, certain answers are snatched from him. When a rustic or an illiterate witness faces an astute lawyer, there is bound to be imbalance and therefore such minor discrepancies have to be ignored (See Krishan Mochi v. State of Bihar, 2002 6 SCC 81). 19. Besides this, both the eye witnesses, P Ws 3 and 4 (Dinu Dhurwa and Paura Devi) are rustic villagers and are likely to be overawed by the court's atmosphere and in the cross examination, made by the defence counsel, out of nervousness, they may get confused and may not be able to answer the questions in its true senses. PW4 Paura Devi is the widow of the deceased Prabhu Manjhi. At the tune of his death, she was. near the place of occurrence and she had seen how her husband was killed by the Appellants. The lady (PW4) who was watching or seeing how her husband had been assaulted to death would not be in a position to count the actual injuries on the person of the deceased caused by the Appellants and she would have been overawed by the atmosphere of such a ghastly incident and she would have naturally lost the prima facie senses of thinking and observing the happenings at the spot. She would not have been in a position to count the assaults how her husband was being killed and how the assaults were being made upon him and she could only, tell the genesis of the incident 'at the spot, she is a natural witness. By and large, the people cannot accurately recall the consequences of events which took place in a short span and reproduced the consequences of events before the investigating officer or the court. They can only remember the main purport of the incident. It is unrealistic to expect from a witness to be a human tape-recorder or a video camera. It is not expected from the witness to have a photographic memory and to recall the details of the incident. The witnesses were overtaken by the incident because they could not have expected the occurrence which shows an element of surprise. It cannot be expected from the witness to narrate the incident with mathematical niceties in criminal cases. Thus, the discrepancy pointed out by the learned Counsel for the defence could not obliterate, an otherwise acceptable evidence. From perusal of the entire evidence, the manner of incident and the genesis of incident has not been disturbed. We therefore do not find any force in the contention of the learned Counsel for the defence. 20. Learned Counsel further contended that there is a sharp contradiction in between the ocular account given by PW3 Dinu Dhurwa and PW4 Satmati Devi alias Paura Devi and the medical evidence which was produced before the court. He further pointed out that PW4 has stated that Bhuneshwar Manjhi was given a farsa blow on the left side of his neck, whereas PW8 Dr. K.D. Choudhury has found partial amputation of his neck from the right side. PW3 Dinu Dhurwa has stated that Prabhu Manjhi was given farsa blow the left side of his neck; According to the doctor PW8, the injuries were found on the right side of neck of both the deceased. No injury was found by the doctor PW8 on the left side of the necks of either of the deceased persons. Learned Counsel for the State refuted the contention and contended that these are minor discrepancies and the discrepancies, as pointed out, are natural. He further contended that otherwise cogent, credible evidence of eye witnesses cannot be discarded by the court only on the ground that opinion evidence given by the doctor is inconsistent. He further contended that the blows were given on the neck of the deceased. One of the eye witnesses was his wife and the other is an independent witness. When such a ghastly occurrence had been taking place, nobody would dare to see such fearful attempt committed by the Appellants. A witness who is present at the spot and looks towards assaults by the Appellant on the (deceased is not supposed to go on counting the number of assaults on the parts of the body where the injuries were inflicted. To expect from an eye witness to exactly count the assaults and blows where it was assaulted would be an absurd expectation. Thus, the evidence of PW3 Dinu Dhurwa and PW4 Satmati Devi @ Paura Devi is cogent and credible and cannot be disbelieved on the ground that the evidence of the witness has little variations about the injuries on the person and blows where it was struck. When an incident occurs, the witness is taken by surprise and due to horror and terror he is not supposed to give the details with mathematical niceties. At the time of incident, the witness either tries to save the injured or the deceased or he becomes a helpless person particularly when he is unarmed and the accused Appellants are armed with weapons. The witness is supposed to give the genesis of the incident. He is not supposed at the time of the incident to count the injuries because he has to give evidence before the court. At the time of incident, he is surrounded by the circumstances which lead him to surprise. In these circumstances, the inconsistencies pointed out by the learned Counsel for the defence is of no avail to them. Moreover, the evidence of PW8 Dr. K.D. Choudhury is an opinion evidence and the evidence of the eye witnesses is the main substantive evidence which is otherwise admissible, cogent and credible and cannot be disbelieved or discarded. 21 The Hon'ble Apex Court in the case of State of Maharashtra v. Prakash Sakha Vasave, 2009 11 SCC 193) has held as, under: 14. The High Court has come to an absurd conclusion that the eye witnesses, P Ws. 3 and 6 gave account of 4 to 5 external injuries but the witnesses did not utter a single word about the remaining 15 injuries. The High Court came to the conclusion that if at all these two witnesses witnessed the incident from a short distance then it was not explained as to why they were not able to account for the remaining injuries which were found on the body of the deceased. A witness who witnesses an attack-on another by three persons armed is not supposed to go on counting the. number of assaults on the parts of the body where the injuries were inflicted.... 22. Learned Counsel for the Appellants contended that the veracity of the FIR and the fard beyan is completely doubtful. The fard beyan was recorded after the arrest of the accused according to the prosecution case which was projected after deliberations in between the witnesses. He further pointed out that information which was submitted by the PW7 Bishambar Manjhi at about 1.00. p.m. at the Police Station which is said to have been signed by him had not been treated as the FIR. The investigating officer PW5 has stated that he reached at the place of occurrence on receiving a secret information at about 1.00 p.m. on the next day i.e. 10.7.1996. Thus, the entire prosecution case becomes doubtful. Learned Addl.P.P. appearing on behalf of the State refuted the contention and he contended that PW7 has been disbelieved by the trial court and he further pointed out that PW7 has categorically staled that he went to the Police Station along with PW6 Jyoti Prakash Tirkey, a witness of the fard, beyan and he has given evidence that the fard beyan was recorded at the place of occurrence by PW3 Rana Ram Badan Singh I.O. He has stated in his cross examination that the informant disclosed about the occurrence in the Police Station and it was not recorded at the Police Station. He further relied on the evidence of PW5 Rana Ram Badan Singh, the investigating officer which has categorically stated in his statement that it was recorded at the place of occurrence at 1.00 p.m. Cardinal principle for appreciation of the evidence is to see firstly whether the evidence of the witness if taken as a whole, appears to have a ring of truth. Once the said impression is formed, the court must scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluating them to find out whether it is against the general tenor of evidence given by the witness and whether the earlier evaluation of the evidence is shaken so as to render it untrustworthy or believable. If minor discrepancies of trivial matter not touching the core of the issue, the hypothetical approach by taking out the said variation and exaggeration and contradictions attaching more importance to some technical error by the investigating officer would not permit rejection of the evidence as a whole. The evidence of PW7 Bishambar Manjhi has been disbelieved on the point that he was a witness to the incident. The other eye witness has categorically stated that he was informed about the incident and he went straightway to the police station. It is also natural that when he heard that his son and brother have been murdered, he would be taken by surprise and he would lose his balance of mind to note the omission and actions done by him. The said witness (PW7) the informant signed the fard beyan. He has stated that he had given information to the police station in writing which was recorded by the Police at the Police Station. The presence of PW7 as the eye witness has been doubted. After over enthusiasm and in exaggeration, he has deposed that he was an eye witness to the incident. Likewise, he had stated that he had given a report it writing to the Police Station so that his evidence may not be disbelieved. It is also on the record in the evidence of the investigating officer that he had reached at the spot on a secret information and he recorded the fard beyan of the informant PW7 at the spot and he has also categorically stated that there was no other report at the Police Station. The evidence of the informant PW7 was recorded on 7.7.1999 after the evidence of the investigating officer. If he would have been so prudent and tutored, he could have visited the entire evidence of PW5 and he could have narrated the occurrence as narrated in the evidence of PW5 Rana Ram Badan Singh, the investigating officer. The other witness has stated to be with him at the time of reaching at the police station as well as at the time of recording of the fard beyan; Jyoti Prakash Tirkey PW6 has categorically stated that no such written report was given before the police and it was not recorded at the police station. He has further corroborated the testimony of the investigating officer PW5 that he (PW5) had recorded the said fard beyan at the spot. There is no enmity of PW7 with the investigating officer PW5. There is no reason why the police will suppress the said report and why the investigating officer (PW5) and Jyoti Prakash Tirkey (PW6) will come forward to tell a lie before the court. 23. Now the question which arises for consideration is as to whether the evidence of recovery of the sharp edged farsa from the chopper of the southern room of the house of the accused Appellant No. 1 is cogent and credible or not. Learned Counsel for the Appellants contended that the said recovery cannot be taken into account and the said recovery is a planted one. Learned Counsel for the State refuted the contention and contended that the prosecution has sufficiently proved the recovery of a blood stained farsa which was recovered on the basis of the statement of the accused Praduman Manjhi and it is relevant under Section 27 of the Indian Evident Act. The prosecution in support of its case examined the investigating officer Rana Ram Badan Singh PW5 who has stated that on the basis of the information of the accused Appellant Praduman Manjhi, he recovered a sharp edged farsa from the Chhapper of the southern room of his house. Seizure memo which was Exhibited as Ext. 4, was prepared at the spot. The said discovery is said to have been made in presence of PW1 Nilambar Pradhan and PW6 Jyoti Prakash Tirkey. It is also the case of the prosecution that the said farsa contained blood. PW1 Nilambar Pradhan was also produced before the court and he did not support the said discovery and he has stated that the said weapon was not recovered in his presence. He only admitted his signature on Ext. 4 and he was declared hostile. PW6 Jyoti Prakash Tirkey has supported the prosecution case on the point of discovery. He has stated in his deposition that the police recovered farsa and the recovery memo was prepared. The said farsa was recovered from the house of the accused Appellant Pradhuman Manjhi and it was recovered in his presence and he proved his signature in the said seizure memo. Thus, PW6 has supported the prosecution. During his cross examination, he stated that the farsa which was recovered from the house of the accused Appellant at his behest is not before him in the court. PW5 the investigating officer has also supported the prosecution story regarding the discovery of the said farsa. He has further stated in his cross examination that the said farsa which was discovered at the behest of the Appellant Praduman Manjhi was not available before him in the court at the time of his evidence. It also transpires from the record that the prosecution did not produce any documents containing the recording of the statement allegedly made by the accused Appellant expressing his desire to facilitate recovery of the farsa. The prosecution case is that the accused Appellant volunteered to give information and took the police for recovery of the farsa--The prosecution or the investigating officer who discovered the said fact has not proved any statement of the accused. The prosecution has not proved any disclosure statement. It is a pre condition to attract the provision of Section 27 of the Indian Evidence Act. The accused Appellant gave a disclosure statement and hereafter the discovery can be effected under Section 27 of the Evidence Act. The disclosure memo only reveals that the said weapon was recover from his house. There is no mention about his disclosure statement either in the seizure memo. The format of seizure memo has been used which is used for recovery of articles under the provisions of the Code of Criminal Procedure. The Hon'ble apex court in the case of Nisar Khan v. State of Uttaranchal, 2006 2 SCC(Cri) 568) held as under: 6... It is now well settled principle of law that the recovery pursuant to the disclosure statement made by the accused under Section 27 of the Evidence Act is admissible in evidence. In Dhananjoy Chatterjee v. State of W.B.,1994 2 SCC 22) it is held that the entire statement made by an. accused person before the police is inadmissible in evidence being hit by Sections 25 and 26 but that part of his statement which led to the discovery of the articles is clearly admissible under Section 27 of the Act. It is also held that the Court must disregard the inadmissible part of the statement and take note only of that part of his statement which distinctly relates to the discovery of the articles pursuant to the disclosure statement made by the accused. It is further held that the discovery of the fact in this connection includes the discovery of an object found, the place from which it is produced and the knowledge of the accused as to its existence. 7. In Golakonda Venkateswara Rao v. State of A.P., 2003 9 SCC 277) this Court reiterated the view and held that the discovery statement of an accused leading to recovery of crime articles from concealed place, even though the discovery statement and the recovery memo did not bear the accused's signature, the fact of recovery from the well and dug out was from a place which was pointed out by the Appellant and, therefore, such discovery was voluntary. That the recovery was in consequence to the information given was fortified and confirmed' by the discovery, of the apparel worn and skeletal remains of the deceased and, therefore, the information and statement cannot be held to be false. In the present case on the recovery memo the signatures of all the accused have been obtained, In Praveen Kumar v. State of Karhataka, 2003 12 SCC 199) the same view has been reiterated. 8. As already noted, in the instant case discovery of the arms was pursuant to the disclosure statement made by the accused immediately after the arrest and the offending arms were recovered at the place pointed out by each of the accused which were concealed under the sand and covered by the stones. The High Court in this regard fell in grave error by disbelieving the recovery memo solely on the ground that the place is a common place which is frequented by the public. The High Court failed to take notice that the recovery has been made from underneath the sand covered by the stones pursuant to the disclosure statement pointed out by each of the accused. 24. The Apex Court in the case of Sattatiya v. State of Maharashtra, 2008 AIR(SC) 1184) held as under: 23. The next thing which is to be seen is whether the evidence relating to the recovery of clothes of the Appellant and the half blade, allegedly used for commission of crime is credible and could be relied on for proving the charge of culpable homicide against the Appellant. In this context, it is important to note that the prosecution did not produce any document containing the recording of statement allegedly made by the Appellant expressing his desire to facilitate recovery of the clothes and half blade. Tire prosecution case that the' accused volunteered to give information and took the police for recovery of the clothes, half blade and purchase of handkerchief is highly suspect.... 25. It is apparent from the decision of the Hon'ble apex court that there must be a disclosure statement leading to discovery. In the instant case, the said disclosure statement is lacking. The Investigating officer either should have recorded a separate disclosure statement before proceeding at the spot and he should have explained this fact to the witness that he has given such statement and after informing all the witnesses, he should have proceeded to the place from where the said weapon had to be recovered. The said statement must be proved before the court and it must be exhibited. In the second contingency when he prepares the seizure memo, he cart record all the details therein and the statement of the accused pointing out the said weapon at the "place and thereafter the recovery should have been effected by the investigating officer. If the said disclosure statement is not proved, it cannot be held by any stretch of imagination that it is a discovery under Section 27 of the Indian Evidence Act and it will remain as recovery of the weapon and will not be read under Section 27 of the Indian Evidence Act. 26. In the case in hand, the said weapon was not produced before the court; one of the public witness, PW1 Nilambar Pradhan has not supported the prosecution case. PW5 and PW6 were produced before the court who supported the prosecution, but at the time of their evidence the said weapon was not produced before the court. It was obligatory on the part of the prosecution to produce the said weapon so that the court may see the weapon and defence could put questions in cross examination to test the veracify of the evidence of the witness. As such, non-production of the said weapon along with the above facts also makes the discovery of the weapon unreliable. Thus, we are also of the opinion that the evidence of discovery cannot be taken into account under Section 27 of the Indian Evidence Act. 27. There is credible and cogent evidence of the eye witnesses. The evidence of discovery was a corroborative piece of evidence for the commission of the offence. Merely disbelieving the discovery would not render the entire credible and cogent evidence of the eye witnesses to be untruthful and untrustworthy. On conspectus of the various relevant features of the case including the genesis, the nature of the incident, the nature of the weapons carried by the Appellants at the time of occurrence, it cannot be concluded from the prosecution evidence or from any probability arising from the materials on record that the Appellants have falsely been implicated in this case. We have gone through the entire evidence on the eye witnesses as well) as the other witnesses. The trial court has found the evidence to be implicitly truthful and reliable, though their presence was attempted to be shown as doubtful. We do not find any reason to accept the plea advanced on behalf of the Appellants. Their presence at the place of the incident was explained and their evidence cannot be doubted as unreliable or tainted merely because one of the witnesses. was related to the deceased. On the other hand, PW4 Satmati Devi alias Paura Devi was a natural witness to the incident. The prosecution evidence has supported the entire case in all material particulars and no infirmity could be pointed out in their evidence. After independent appreciation of the evidence on record, we do not find any fault with the findings recorded by the learned trial court with regard to the genesis of the incident. No other points for consideration was raised on behalf of the Appellants. 28. In view of the aforesaid discussion, we hold that the prosecution has established the guilt beyond reasonable doubt against the Appellants. We find that the trial court has rightly convicted and sentenced the Appellants and there is no infirmity in the impugned judgment and order of conviction and sentence passed by the learned trial court in Sessions Trial No. 68 of 1996. The Appellants are liable to be convicted and sentenced as awarded by the trial court. Hence the appeal is liable to be dismissed. For the aforesaid reasons, we find that the appeal is devoid of any merit and is fit to be dismissed Accordingly, this appeal is dismissed.;