Judgment Satyeshwar Roy and Abhiram Singh JJ. 1. Five persons were tried under sections 302, 302/ 149 and 323 of the Indian Penal Code. Two of them were acquitted and the three appellants, the brothers were convicted. Appellant No 1, Maga Ram Rajak was convicted under sec. 323 of the Indian Penal Code and sentenced to imprisonment for life. All the appellants were convicted under sec. 323 of the Penal Code and each of them was sentenced to one month rigorous imprisonment. 2. According to prosecution, on 29th March, 1975, the appellants murdered Khanu Debi, wife of PW 9. The information of this occurrence was lodged with the police by PW I, the nephew of PW 9. The court below on the basis of the evidence of PW 1, 2, 5, 9 and 10 found the appellants guilty. 3. Mr. Sahay, learned counsel appearing for the appellants, submitted that so far PW 10 has concerned he was never examined by the police during the course of investigation. His evidence in court was, therefore, of no consequence. From the record it appears that PW 10 was examined for the first time in court and her statement was not recorded by the police during the course of investigation. We, therefore, exclude the evidence of PW 10. 4. On the basis of the evidence of PW 9 the appellant No. 1 Maga was held guilty under sec. 302 of the Penal Code. Mr. Sahay submitted that the occurrence, as stated by PW 1 in FIR is in material variation with that stated by him in his evidence. The prosecution case, therefore, should not be believed. 5. According to the FIR about two months prior to the date of occurrence, that is, some time in January, appellant Maga Ram came to the shop of PW 9 and demanded a cigarette on credit which PW 9 refused to give. Because of this there was animosity between the appellant Maga and the prosecution party. On the date of occurrence, that is on 29th March, 1975 at about 4 p.m. when PW 9 was in his door of the house, appellant Sachhu started abusing him. Thereafter, appellant Maga assaulted him and the deceased who had reached there. The rest of the accused including appellants Bistu assaulted PWs. 2, 5 and 9. On the date of occurrence, that is on 29th March, 1975 at about 4 p.m. when PW 9 was in his door of the house, appellant Sachhu started abusing him. Thereafter, appellant Maga assaulted him and the deceased who had reached there. The rest of the accused including appellants Bistu assaulted PWs. 2, 5 and 9. In the evidence PW 1 stated that about 4 p.m. on 29th March, 1975 appellant Maga and appellant Sachhu came to the shop of PW 9. Appellant Maga asked for a cigarette for which PW 9 demanded 10 p. But Maga tendered only 8 p. and PW 9 refused to give the cigarette. Appellant Maga slapped PW 9. Thereafter, appellant Maga and appellant Sachhu left the place. At about 3 p.m. all the appellants came armed with lathi to the shop of PW 9 Appellant Maga dragged down PW 9 from his shop and assaulted him with lathi. The deceased came to save him but was assaulted and she fell down Thereafter PW 1 came and was also assaulted. After PW 1, P.Ws. 2 and 5 came. 6. From the evidence, it will appear that PW 1 had spoken about two occurrence one about two months prior to 29th March, 1975 and the other on 29th March, 1975 at about 4 p.m., whereas in the evidence both the occurrences took place on 29th March, 1975. Further according to FIR, PW 1 was assaulted first near his darwaja and thereafter others were assaulted including the deceased, whereas according to his evidence ?W 9 was dragged down from his shop and assaulted there and when others went there including the deceased, they were also assaulted. The place of occurrence, therefore, according to the FIR was near the door of the house of PW 1, whereas according to his evidence it was the shop of PW 9. In our opinion, there has been material variation with regard to the manner of occurrence and the place of occurrence as stated in the FIR and as stated during the course of trial. 7. All the witnesses examined in this case were related to each other. According to FIR, Binod Mahato, Fagu Manjhi, Janki Mahato and PW 8 had also seen the occurrence. All these persons were not in any way related to either the prosecution or the eye-witnesses. Out of them, PW 8 was tendered. 7. All the witnesses examined in this case were related to each other. According to FIR, Binod Mahato, Fagu Manjhi, Janki Mahato and PW 8 had also seen the occurrence. All these persons were not in any way related to either the prosecution or the eye-witnesses. Out of them, PW 8 was tendered. His evidence, therefore, is of no consequence. So far the other three persons were concerned they were not examined by the witnesses. When independent witnesses were available, the prosecution ought to have examined them or atleast some of them. For all the reasons aforesaid, the case of the prosecution becomes doubtful. We, therefore, held that the prosecution has failed to prove the charges levelled against the appellants be yond all reasonable doubts. 8. In the result, the appeal is allowed, the judgment and order of conviction and sentence passed against the appellants are set aside and the appellant who are on bail, are discharged from the liability of the bail bonds executed by them.