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(Emphasis added)

22.Submission of the learned counsel for the appellants was that the witnesses are chance witnesses. We have very cautiously considered their evidence. In the instant case both the witnesses have stated that they had gone to attend the 'Durga Puja' ceremony at Harinagar crossing Radhey Saran Shukla also reached there after completing his duty and after 'Durja Puja' both were coming back from the road and they were having torches in their hands. During 'Durga Puja' it is very common phenomena to go and attend 'Durga Puja' and it is absolutely natural that when two brothers who were coming from different directions and they met at the 'Durga Puja' then they will come back to their own houses together. This is the case of the prosecution that they were coming together to their house. As stated earlier, there is no dispute that the said road which passes by the side of the field of Jokhu Verma is not the way to their house rather that is the only way to their village. The murder is alleged to have been committed in the field of Jokhu Verma only at a distance of 8-10 paces from the road whereby these two witnesses were passing. In such religious ceremonies like 'Durga Puja' etc it is nowhere necessary that all the persons must leave the place of Puja at one time. It is only after offering prayers the visitors, as per their own circumstance, leaves the place at the time that suits them. So in the instant case, if these two brothers left the place littler prior to 9:30 p.m. then the same cannot be made a ground to discard their evidence. It has come in evidence that these witnesses left the Puja after Aarti and after taking Prasad.

23.In the instant case, admittedly the incident has taken place by the side of a way which is going from Tanda to Mamrejpur i.e. village of the deceased and the witnesses. The incident has taken place in a paddy field of Jokhu Verma adjacent to the said road on the southern side. Both the witnesses have stated that they had gone to see 'Durga puja' in Harinagar and they were coming back together to their houses, therefore, these two witnesses were using the public way while they became witness of this incident of the murder of their own brother. It has nowhere been challenged during cross examination of both these two witnesses of fact that no 'Durga puja' was organized in Harinagar and it is really strange to note that no such suggestion has been given to these two witnesses that they had not gone to attend the 'Durga puja' in Harinagar. So the fact that these two witnesses went to Harinagar to see 'Durga puja' remains unchallenged.

34.It has also been argued regarding PW-2 that he is a bus conductor and his presence at the time of occurrence was doubtful. It has come in evidence of PW-2 that he is a conductor in roadways and he was on duty on Akbarpur Tanda road. His bus plies throughout day. In the evening at about 6:00 p.m., it reaches Tanda and after staying there for about 10 minutes he comes back to his village by another bus and come to his house. On the said day he reached his house at about 6:45 p.m. and after staying at his house for 10-15 minutes he went to see 'Durga puja' at Hari Nagar. This witness has stated that from his house no other member of his family accompanied him to 'Durga puja'. On the basis of this statement of PW-2 learned counsel for the appellants has tried to challenge the presence of PW-1. But the arguments advanced by the learned counsel for the appellants on this point could not impress us because it has come in evidence that all the brothers have their separate houses. According to the case of the prosecution these two brothers met each other in 'Durga puja'. It is nowhere the case of the prosecution that these two witnesses went together from their houses to 'Durga puja'. So the aforesaid statements of PW-2 does not adversely affect the case of the prosecution rather it supports the prosecution story that they met in Durga Puja only.

35.It has also been argued that PW-2 has admitted that there was also a 'Durga puja' near his house and on the basis of this submission it is argued that there was no occasion for the witnesses to go to Harinagar Tiraha for 'Durga puja'. But the Court cannot ignore the ground realities while appreciating the evidence. People often like to go to 'Durga puja' which is decorated in a better manner and is more attractive. So simply because these two witnesses went to offer their prayers in 'Durga puja' of Harinagar crossing cannot be a ground to doubt their presence. The 'Durga puja' of their village was near their houses so they were in a position to see it throughout the day. So if in the night they had gone to another 'Durga puja' then this by itself cannot be treated as an unnatural conduct to disbelieve their evidence. PW-2 has stated that Aarti started at 8:30 p.m. which continued for about 15 minutes thereafter 10-15 minutes was consumed in taking Aarti and Prasad and thereafter he alongwith his brother moved towards their houses and while they were on the way they have witnessed this incident.