Judgment M. P. Verma, J. 1. Appellant no.1 Etwari Mandal has been convicted for offences under sections 304, Part-It and 147 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for seven years and six months respectively, appellant no.2 Banwari Gope has been convicted for offences under sections 323 and 147 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for six months under both the counts appellant no.3 birhaspat Mandal son of Lochan Mandal has been convicted for offences under sections 324 and 148 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for one year under each count, appellant no.4 Ghanshyam gope has been convicted for an offence under Sec.148 of the Indian Penal Code and sentenced to suffer imprisonment for six months and appellant no.5 Madan, mandal has been convicted under section 147 of the Indian Penal Code and has been sentenced to suffer imprisonment for six months. 2. All the five appellants were put on trial along with 13 other accused in the court of Shri Md. Abdul Sattar, Second Addl. Sessions Judge, Hazaribagh, in Sessions Case No.106 of 1969, and the learned Judge by his judgment dated 24th February, 1973, acquitted all the 13 accused but held these five appellants guilty of the offences as recorded above. 3. The occurrence took place on 13.11.1968 According to the prosecution, badri Singh (P. W.4) along with Jatal Singh (deceased,) Puran Singh (P. W.1), gully (P. W.7), Mangaru Gope (P. W.2.) Bandhu and Sanichar with many other labourers were carrying bundles of paddy crops on two bullock carts after harvesting the same from Gullus (P. W.7) khet in village Kumhargaria. When they crossed the river bed and reached on the western bank of it, the accused persons all of a sudden came over and asked why they were removing the crops and demanded partition of the same which was objected to and this was followed by an attack on the numbers of the prosecution party. Appellants nos.1 and 2 are alleged to have assaulted Jatal Singh (deceasad)with lathi and stones. Both the appellants nos.3 and 4 are said to have assaulted (P. W.1) Puran Singh with swords. Appellant no.5 is also said to have assaulted Puran Singh with a lathi. Appellants nos.1 and 2 are alleged to have assaulted Jatal Singh (deceasad)with lathi and stones. Both the appellants nos.3 and 4 are said to have assaulted (P. W.1) Puran Singh with swords. Appellant no.5 is also said to have assaulted Puran Singh with a lathi. The version of the defence in short is that they had share in the paddy crop and atrocities were committed by the members of the prosecution party in harvesting and removing the crop and on protest, prosecution party attacked on them as aggressors. 4. Having heard the learned counsel for the appellants and the State and i find serious descripancies in the statement of the witnesses with regard to the identification of the appellants in the involvement of the aforesaid crime. According to the prosecution Jatal was received injuries and was immediately removed to hospital where medical aid was given to him. But the injuries proved fatal and he died in the hospital. P. W.3 is the Medical Officer, who had held post mortem over the dead body of Jatal Singh on 14.11.62 and had found the following antimortem injuries : - (1) One sharp cut wound 3/4" vert. X 1/4" wide X deep inside the socket of the right eye, rapturing the right eyeball on the right side laterally. (2) One lacerated wound over the parietal bone of the skull in the central close to the middle 3" vertical x 1/4 X deep upto the bone which is fractured (right side ). (3) Bleeding from both nostril present. (4) One lacerated wound over ring finger laterally over the base 1/2" X 1/4". (5) One scratch over left leg anteriorly one inch below knee joint 1/2" X 1/4". 5. From the post-mortem report the. death, of Jatal Singh is definitely an act of homicide, but the question arises who gave the fatal blow and whether the appellants could be properly identified to enable the court to give a finding of guilt or the charges for which they were put on trial. There are 4 eye-witnesses of the incident. They are P. W. I Puran Singh, P. W.2 Mangru Gope, P. W.4 badri Singh and P. W.7 Gullu, P. W.1 Puran Singh has admitted that he did not know any one of the accused from before either by name or by face. There are 4 eye-witnesses of the incident. They are P. W. I Puran Singh, P. W.2 Mangru Gope, P. W.4 badri Singh and P. W.7 Gullu, P. W.1 Puran Singh has admitted that he did not know any one of the accused from before either by name or by face. He further admitted that he has named them at the instance of Gullu (P. W.7.) He could not point out that appellant no.1 Etwari Mandal and appellant no.2 banwari Mandal, who are said to be the appellants of deceased Jatal. He has made further contradictory statement with regard to the manner of assault and has said that Etwari assaulted Jatal Singh with sword and Banwari Mandal with lathi and one Kokil (acquitted by the trial court) assaulted Jatal with barchha P. W.4 Badri Singh has also admitted similarly that he did not know any of the accused prior to the date of occurrence by name or by face and makes further contradictory statements when he accuses appellant no.3 Birhaspat mandal as assaillant with sword on the shoulder whereas the Doctor (P. W.3) did not find any sush injury on him. He also did not find any Barchha injury on any of the injured. It may be relevant to mention here that both P. W. s.1 and 4 had no occasion to identify any of the accused at the T. I. parade. His further evidence is that he did not know some of the accused named, Rameshwar, raghu and others but still asserted that he had seen them at the time of occurrence P. W.2 Mangru Gope also cannot be relied on the point of identification of the appellants. Firstly because he has made contradictory statements with regard to the manner of assault. He has stated that Birhaspat assaulted Badri with a sword on the left shoulder and Banwari assaulted Badri with a stone and -Ghanshyam assaulted Puran with a sword on his back and these facts are quite contrary to the findings and the statements given by the doctor (P. W.3) Secondly, on perusal of his statement, it appears that he was on the other side of the bank and his evidence has not been accepted even by the trial court. He has further admitted that he had gone to police station on the same date of occurrence where he gave statement, which was recorded and he had affixed his thumb-impression on it. This statement has not come to court. P. W.7 Gullus statement also does not inspire confidence. He named all the 18 accused who were put on trial, but the trial court rejected his evidence so far as participation of other accused are concerned. He further stated that accused Raghu, Budhu, Ghanshyam and birhaspat were carrying swords. Kokil had a barcha and further gave out that birhaspat assaulted Badri with a lathi. He has further added that Banwari had hit Jatal with sword on the knee and not on the head or any other vital part of the body. His entire evidence stands contradicted from the findings of the doctor (P. W.3) He has further added that Raghu assaulted Puran Singh with a lathi were as P. W.1 had said that Raghu had assaulted with a sword. 6. There is another aspect of the case which also deserves consideration. The accused has brought on record Kewalas Ext B and B (1) and also hukumnama Ext. C and some rent receipts Ext. D Series. Their defence is that they had a share in the property and as seen above it was found that accused had asked for the division of the crops which had to this occurrence. The trial court on consideration of the evidence has given a finding that there was a not between the two groups i. e. parties of Gullu on one side and the accused on the other side. The doctor (P. W.3) has proved the injuries on accused Madan Mandal, Darwari mandal and the injury reports are Exts. A and A/1 and that all the prosecution witnesses have made a suppression of facts and denied all such injuries found on some of the accused. In view of the findings of the trial court that there was a mutual marpit over the possession of the cultivated crops and that the prosecution suppressed the material facts of the case, it appears that the true manner of occurrence is not brought before the court and in such a situation coupled with the fact of descripant and doubtful identification, it is unsafe to hold the appellants guilty of the charges and they are entitled to benefit of doubt. 7. 7. In the result, the appeal is allowed and the order of conviction and sentence passed against each of the appellants is set aside, and they may be discharged from the bail bonds, if any.