Judgment M.P.VERMA, J. 1. All these four anneals have been heard together, as they arise out of the same order of conviction and sentence passed by the learned Additional Sessions Judge of Gaya, and this judgement will govern them all. In Criminal Appeal No. 198 of 1968, Awadh Singh alias Ram Awadh Singh is the appellant: in Criminal Appeal No. 202 of 1968, the appellant is Hariharnath Singh; in Criminal Appeal No. 213 of 1968, Kamta Singh and Niranjan Singh are the appellants, and in Criminal Appeal No. 225 of 1968. Umashankar Singh is the appellant. 2. Appellants Kamta Singh, Niranjan Singh and Umashankar Singh have been found guilty under Sec.302 of the Indian Penal Code, and sentenced to undergo rigorous imprisonment for life. All the five appellants were also found guilty under Sections 302/149 of the Indian Penal Code, but no separate sentence was passed against Kamta Singh, Niranjan Singh and Uma Shankar Singh, but Awadh Singh and Hariharnath Singh have each been sentenced to undergo rigorous imprisonment for ten years. Awadh Singh was further found guilty under Sec.147 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year. The other four appellants were further found guilty under Sec.148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years each. The sentences under the different sections have, however, been ordered to run concurrently. It may be stated that according to the case of the prosecution. Awadh Singh was carrying a lathi Hariharnath Singh was carrying a gun. Niranjan Singh was carrying a pharsa and Kamta Singh and Umashankar Singh were carrying bhalas. There was also another accused. Nandkishore Singh, who, it is said, was carrying a gun; but he was murdered after the commitment inquiry and so he could not face the trial. 3. Deceased Bhrigunath Singh had his houses in villages Belarhi and Tarari lying within Police-Station, Daudnagar, in the District of Gava. He had culturable lands in both these villages. On 31st July, 1966, at about 12 noon, while he was coming towards Tarari side by the canal road, he was intercepted by these appellants and brutally assaulted. His body was then thrown into the canal water. P.W. 9 Deokinandan Singh, who saw this occurrence, went about a mile off and informed P.W. 14 Surender Prasad Singh about the murder of his father, Bhrigunath Singh. His body was then thrown into the canal water. P.W. 9 Deokinandan Singh, who saw this occurrence, went about a mile off and informed P.W. 14 Surender Prasad Singh about the murder of his father, Bhrigunath Singh. Then they went to the canal side and picked out the dead body from the water and placed it on the bank near the house of Bhrigunath Singh. Thereafter P.W. 14 and others went to the police-station and lodged a fard beyan at 2.30 p.m. on the basis of which a formal first information report was drawn up. 4. P.W. 16 Dharichhan Singh, Assistant Sub-Inspector of Police, after recording the fard beyan, went to the place of occurrence and saw the dead body which was lying naked, but it was covered with a dhoti and a blanket. He found no blood at the alleged place of occurrence, perhaps, due to rains. He found blood on the ground below the head of the dead body in an area of 1 foot x 1 foot. The water in the canal was 5 feet 4 inches deep and the current was swift. There were two mango trees on the northern flank of the canal road and this place was found somewhat depressed. He held inquest over the dead body and sent it to Aurangabad hospital for post-mortem examination where P.W. 4 Dr. Jagat Narain Verma held the post-mortem examination. He had been examined as P.W. 1 in the court of the committing Magistrate, and was further examined in the Sessions Court as P.W. 4. He noticed that the dead body was not decomposed and there were several ante-mortem injuries on it. Those injuries were :- (i) One incised wound oblique above the bridge of the nose cutting the soft tissues, bone and the brain on all sides, except the left side. Size 8" x 81/2". The brain matter was seen coming out and cut bone and soft tissues were hanging on the left side. (ii) One incised wound 3" x 1" oblique on the left cheek, just below the left eye, cutting the left eye. (iii) One piercing wound 1" x 1" x 3/4" over the right side of the face, just in between the right nose and the right eye at the upper part. (iv) One incised wound 6" x 1" x 2" on the right side of the neck obliquely in the middle. (iii) One piercing wound 1" x 1" x 3/4" over the right side of the face, just in between the right nose and the right eye at the upper part. (iv) One incised wound 6" x 1" x 2" on the right side of the neck obliquely in the middle. (v) One incised wound 1" x -" x -" over the left side of the neck at the lower level. (vi) Two incised wounds 2" x 11/2" x 1" and another 1" x 1/2" x 1/2" one inch apart over the left shoulder. (vii) One incised wound 2" x 1/4" x 1/2" over the outer surface of the left forearm just above the left wrist. (viii) One incised wound 1/2" 1/2" x 1/2" over the palmar surface of the left little finger. (ix) One incised wound oblique 11/2" x 1/2" x 1/2" over the under surface of the middle of the right forearm. (x) One piercing wound 11/4" x 4" x -" over the middle of the left side of the abdomen. (xi) One incised wound 21/2" x 11/4" x 1" over the back side of the right shoulder. In his opinion, death was mainly due to injuries Nos. (i) and (x), and all the injuries could have been caused by bhala and pharsa. According to the doctor, the injuries were sufficient, in the ordinary course of nature, to cause death. In the Sessions Court, he was further examined and he stated in his cross-examination that the time of death was within 48 hours. When further cross-examined, he gave the time of death within 36 to 48 hours. He did not find any food-stuff of any kind either in the bigger or in the inner intestine. Concerning injury No. (i), his opinion was that it could not have been caused when the man was in a standing posture; there must be some support to the head and then only such an injury could be caused. By this he meant that the injury could be caused when the man was lying on the ground, because in that case his head would be pitted against the ground. This he said because of the very severe injury which had been caused on the head, as stated above. 5. By this he meant that the injury could be caused when the man was lying on the ground, because in that case his head would be pitted against the ground. This he said because of the very severe injury which had been caused on the head, as stated above. 5. A number of witnesses had been examined at the police-station that very day and, when the investigation was complete, the Police sbumitted charge-sheet against these five appellants, besides Nand Kishore Singh, who was subsequently murdered. 6. The defence of the accused persons was that they had nothing to do with the murder of Bhrigunath Singh; he had many enemies and the murderous attack on him might be the action of some of his enemies, which was done in the early hours of the morning when Bhrigunath Singh might have gone to ease himself. It was only when the dead body was discovered floating in the canal at about noon that interested persons deliberately implicated the accused persons because they were fighting cases with the family of Bhrigunath Singh. Mr. J.N. Verma, learned Counsel appearing for the appellants in this court, has further contended that the place of occurrence, the manner of the occurrence and the time of the occurrence, have not been established by the prosecution beyond reasonable doubt. His another contention was that three of the appellants could not have been convicted under Sec.302 of the Indian Penal Code simpliciter, while being acquitted under Sections 302/149 of the Indian Penal Code. 7. In the court of the learned Additional Sessions Judge, the prosecution had examined 16 witnesses, out of whom P.W. 6 Dinesh Singh and P.W. 9 Deokinandan Singh are the eye-witnesses of the occurrence. P.W. 3 Shiv Kumar SingH.P.W. 8 Kuldip Singh and P.W. 10 Ram Nandan Singh can be classed as supporting witnesses in the sense that they saw the appellants fleeing away with their weapons after the occurrence. There are two Police witnesses who investigated into the case and they are P.Ws. 15 and 16. 8. Before discussing the evidence of these important witnesses. I may give the genealogy to show the relationship between the deceased and some of the prosecution witnesses : 9. There are two Police witnesses who investigated into the case and they are P.Ws. 15 and 16. 8. Before discussing the evidence of these important witnesses. I may give the genealogy to show the relationship between the deceased and some of the prosecution witnesses : 9. The witnesses who have been examined on behalf of the prosecution concerning this occurrence cannot but be branded as highly interested and inimical; but, on this ground alone, their evidence cannot be rejected outright. In Masaltis case ( AIR 1965 SC 202 ), their Lordships clearly expressed the opinion that often enough where factions prevail amongst villagers and murders are committed as a result of enmity between such factions. Criminal Courts have to deal with the evidence of partisan type. The mechanical rejection of such evidence, on the sole ground that it is partisan, would invariably lead to the failure of justice. All that is necessary in such case is that the judicial approach has to be cautious in dealing with such evidence. So, it can be said that, if there is consistent evidence, even of partisan witnesses, and that evidence is supported by circumstances and broad probabilities obtaining in the case, that evidence should be accepted and should not be thrown out because the witnesses are of a partisan type. On the other hand, if the evidence of such witnesses does not conform to the medical evidence, or to the attending circumstances and is against the broad probabilities of the case that evidence cannot be accepted as correct. In other words, if there are intrinsic lacunae or infirmities in the evidence of the witnesses, then it will be very difficult for the prosecution to succeed on the evidence of such a type. In the case in hand, apart from the inconsistent evidence of the two eyewitnesses. P.Ws. 6 and 9 as regards the manner of the assault and which, accused carried what weapon, there are a number of circumstances which, do not go to indicate that they have given a correct version of the occurrence. These circumstances have not been satisfactorily explained by the learned Additional Sessions Judge and he has given such explanations which I am not prepared to readily accept. [After discussing the evidence his Lordship proceeded.] 10. ********** 11. ********** 12. ********** 13. ********** 14. ********** 15. ********** 16. These circumstances have not been satisfactorily explained by the learned Additional Sessions Judge and he has given such explanations which I am not prepared to readily accept. [After discussing the evidence his Lordship proceeded.] 10. ********** 11. ********** 12. ********** 13. ********** 14. ********** 15. ********** 16. In view of the analysis of the evidence given above, it cannot but be held that the prosecution has not been able to brine the charges borne to these appellants. There are certain circumstances which go to weaken the prosecution case to a very great extent and a very reasonable doubt is created about the truth of its story. As already mentioned the doctor did not find any foodstuff in the stomach of the deceased. It is really doubtful whether till 12 Oclock in the day this Bhrigunath Singh, in affluent circumstances, would not take anything. Of course, there is no definite evidence either way : but it is a matter of common experience that in villages people going out to do work early in the morning do take kalewa either in the house itself or the kalewa is sent to them at the place where they work. The second infirmity in the case of the prosecution is that, when the dead body was discovered, it was all naked. It is also uncommon to think that this man would go bare-bodied to work in the field. It was the month of July. What became of his dhoti is still shrouded in mystery. Two days after the discovery of the dead body a piece of cloth said to be a portion of a dhoti was found tagged with a Khagra (dried palm leaf). This was picked out by P.W. 14 and kept before his house and when the investigating officer went there it was made over to him; because it is clear from the evidence of the investigating officer that he seized this cloth not from the water itself, but from the place near the house of Bhrigunath. When the investigating officer called upon P.W. 14 to produce the other pair of this dhoti, which, perhaps, he undertook to do, he failed to do so. No further attempt appears to have been made to establish the identity of this portion of the dhoti. When the investigating officer called upon P.W. 14 to produce the other pair of this dhoti, which, perhaps, he undertook to do, he failed to do so. No further attempt appears to have been made to establish the identity of this portion of the dhoti. It is imaginable that a lungi may get untied due to force of current, but a dhoti, which is fastened in the waist and a portion of it is tied in the back between the legs, would get disconnected from the body altogether by the current of the water Perhaps, the assailants had deep-seated enmity with Bhrigunath and they made him naked and then murdered him. The learned Judge in the Court below also has not placed any reliance on this dhoti part of the prosecution case. It is also in evidence that a stick said to be belonging to the deceased was produced before the investigating officer by the son of the deceased, who has stated that one Khargu Chamar had given that stick to him. This Khargu Chamar was not examined to say as to how and from where he had got this stick. Another infirmity which was pointed out in the case of the prosecution is that appellant Awadh is said to be carrying a lathi and is alleged to have assaulted the deceased with his lathi. But the evidence of the doctor is that there was no injury which could be said to be the result of assault by a lathi they are all incised or punctured wounds. There were two gun-men but it is stange, they did not use it even once. 17. I do not want to criticise the judgement of the learned Additional Sessions Judge, but the reasonings advanced by him do not appeal to me at all. In paragraph 13 of his judgement the learned Judge has said that "the evidence of P.W. 16 appears to be a settlor on the point of time of death of late Bhrigunath Singh". This P.W. 16 was the Assistant Sub-Inspector of Police and he was the first investigating officer of the case. I fail to understand how his evidence would be a settlor of the question of the time of death. In the opinion of the doctor, death had taken place within 36 to 48 hours. This P.W. 16 was the Assistant Sub-Inspector of Police and he was the first investigating officer of the case. I fail to understand how his evidence would be a settlor of the question of the time of death. In the opinion of the doctor, death had taken place within 36 to 48 hours. We can give a margin of an hour or so, but it cannot be argued with any reasonableness that the time of death would be less than 24 hours. So, this evidence goes to indicate that death had taken place in the night of Saturday or in the early hours of Sunday. The learned Judge has said that rigor mortis was present in the body. But this fact is not mentioned anywhere either in the post mortem report or in the evidence of the doctor. If the dead body had not decomposed, it was due to the fact that it was floating in the water and this process must have retarded decomposition of the dead body. In such circumstances, if there was no decomposition, it would not mean that the death had taken place only within a few hours of the post mortem examination. 18. The learned Additional Sessions Judge has also committed a serious mistake in the matter of awarding the sentences to the two appellants. Awadh and Hariharnath. The committing court had framed charges under Sec.302/149 of the Indian Penal Code against all the accused. But, when the case came up to be tried before the learned Additional Sessions Judge, he recast the charges and framed charges under Sec.302 of the Indian Penal Code simpliciter against Kamta, Niranjan and Uma Shankar. These three appellants were found guilty under Sec.302 and each one of them has been sentenced to undergo rigorous imprisonment for life. In my opinion, this order is defective. Whoever commits murder is held to be guilty under Sec.302, and, if the evidence is not clear as to who gave the fatal blow and there are more than one assailants, then the charge should be framed under Sec.302/34 of the Indian Penal Code or if there are five or more persons having a common object to murder a man, then the charge should be under Sec.302/149. If these appellants, Kamta, Niranjan and Uma Shankar, had the common intention and with that intention they attacked Bhrigunath, they should have been found guilty under Sec.302/34 and not only under Sec.302 of the Indian Penal Code. It is further strange that, although he has found appellants Awadh and Hariharnath guilty under Sec.302/149, he has awarded a sentence of ten years rigorous imprisonment to them. This is altogether unwarranted by law. The learned Additional Sessions Judge has referred to a case reported in ILR (1944) Kar (FC) 72 : (AIR 1944 FC 35). It appears that the correct reference of Rajagopalans case in AIR 1944 FC 35 (Rajagopalan V/s. Emperor). This case does not support his view that, under Sec.302/149 of the Indian Penal Code, a sentence of ten years rigorous imprisonment can be passed. The learned Judge appears to have been misdirected by taking into consideration the last paragraph of the notes under Sec.149 of the Indian Penal Code in Ratan Lals Indian Penal Code (21st Edition. page 375) which reads as follows : "The contention that in a case of a conviction under Sec.302, read with this section, the proper sentence in all cases must be imprisonment for life cannot be acceded to as the question of sentence must in each case depend upon the facts of the case." The reference for this observation is given as Rajagopalan ILR (1944) Ker (FC) 72 : (AIR 1944 FC 35). There is also another case reported under the same heading as AIR 1954 Andhra 46. The federal Court case makes a distinction between the circumstances in which death penalty can be given and the circumstances in which rigorous imprisonment for life can be indicated. But nowhere it says and it cannot say, in view of the language of Sec.302 of the Indian Penal Code, that any punishment lesser than rigorous imprisonment for life can be imposed for an offence under Sec.302/149 of the Indian Penal Code. In my opinion, the learned Judge should have himself read the case, and should not have depended on the short annotation which he had found in Ratan Lals Penal Code. Any way, in view of the fact that the order of conviction and sentence is going to be set aside and an order of acquittal is going to be recorded, this aspect of the matter need not be discussed any further. Any way, in view of the fact that the order of conviction and sentence is going to be set aside and an order of acquittal is going to be recorded, this aspect of the matter need not be discussed any further. 19 In the result, all these appeals succeed and are allowed the order of conviction and sentence passed against the appellants is set aside giving them the benefit of doubt and they are acquitted of the charges levelled against them. They will now stand discharged from their bail bonds. A.N.MUKHARJI, J. 20 I agree.