JUDGMENT : P.S. Mishra, J. - All the twelve appellants, namely, Ramasis Mahto, Ramwatar Rai, Lalbahadur Rai, Ramji Mahto, Chandradeo Mahto Chandradeo Rai, Jamuna Bhagat, Jagarnath Bhagat, Awadhesh Mahto, Jagarnath Singh and Bijuli Rai, have been convicted under section 302/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life by the Additional Sessions Judge, Motihari. 2. Two persons, namely, Bacha Tiwary and Daroga Singh were assaulted, at a road crossing near village Bankatwa. According to the prosecution, Bacha Tiwary and Daroga Singh, both residents of village Kanwaha, were returning on a motor-cycle from Motihari to their village and when they reached near the road crossing, the appellants along with some other persons all of a sudden came out from a suger-cane field and attacked them by Lathi, Bhala and Garasa etc. Due to the assault suddenly hurled upon them, they fell down on the ground along with the motor cycle. Bacha Tiwary and Daroga Singh, raised alarm. Some passers-by and others, who were in the fields nearby, arrived, but in the meanwhile the appellants and other assailants fled away towards west. One Nand Kishore Pandey of village Gidha, who was coming on a bicycle at that time, saw the assault and recognised the victims and the assailants. He rushed towards the village Kauwaha to inform Ramdeni Tiwary, father of Bacha Tiwary. Nand Kishore Pandey accordingly came to Ramdeni Tiwary and told him how Bacha Tiwary and Daroga Singh had been assaulted near Bankatwa road crossing when they were returning on motor-cycle. He also disclosed the name of fourteen persons, whom he claimed to have identified in the mob assaulting Bacha Tiwari and Daroga Singh. Ramdeni Tiwary along with Jogendra Singh, Dhanukha Thakur and some constables who had been deputed in his village since prior to the occurrence, rushed to the place of occurrence on hearing about the occurrence from Nand Kishore Pandey, Ramdeni Tiwary and others found Bacha Tiwary and Daroga Singh lying injured on the road near village Bankatwa. Ramdeni Tiwary enquired from Bacha Tiwary and Daroga Singh, who was still conscious, who had assaulted them. They named the fourteen persons named by Nand Kishore Pandey as their assailants. They also told Ramdeni Tiwary that the accused persons were hiding themselves in the nearly sugar-cane field and suddenly fell upon them when they reached near the crossing. Ramdeni Tiwary enquired from Bacha Tiwary and Daroga Singh, who was still conscious, who had assaulted them. They named the fourteen persons named by Nand Kishore Pandey as their assailants. They also told Ramdeni Tiwary that the accused persons were hiding themselves in the nearly sugar-cane field and suddenly fell upon them when they reached near the crossing. Bacha Tiwary told Ramdeni Tiwary that appellant, Ramasis Mahto assaulted them with bhala and appellant Lalbhadur Rai assaulted them with Farsa and the accused persons snatched their wrist watch, ring and money which they possessed. 3. Ramdeni Tiwary (P.W. 11) accordingly, informed the police and on the basis of his• statement, the police registered a case and took up investigation. After investigation, the Police submitted charge sheet. The case was ultimately tried by the Additional Sessions Judge, Motihari, who, as noticed above, recorded the ORDER :of conviction and sentenced the appellants to undergo rigorous imprisonment for life. Two other persons, namely, Ramlochan Singh and Basudeo Rai, who were tried along with the appellants, have been acquitted by the learned Additional Sessions Judge. 4. The occurrence took place on 29.12.1971 at about 4.30 P.M. Nand Kishore Pandey informed Ramdeni Tiwary at 4.55 P.M. Soon thereafter Ramdeni Tiwary and others came at the road and saw Bacha Tiwary and Daroga, Singh. Ramdeni Tiwary's fardbeyan was recorded at the Sadar Hospital at 8 P.M. He bas deposed as P.W. 11 in the court and he has proved his ferdbeyan. The officer-incharge of the local police station (Sugauli) visited .the village of occurrence in the night and seized a pair of Chappal in presence of the witnesses from the place of occurrence and prepared the seizure list (Ext. 6). As it was late in the night, the officer-in-charge left constable Satyanarayan Singh to watch the place of occurrence and took up further inspection of the place of occurrence on the following morning. At the place of occurrence, he found blood at two places. He seized the blood stained earth in presence of the witnesses and prepared its seizure list. He prepared a sketch map of the place of occurrence (Ext. 7). He also seized the motor-cycle bearing no. BRF 6393 from the Darwaja of Nathuni Tiwary. 5. Dr. Sitaram Prasad of Sadar Hospital, Motihari held post mortem examination on the dead body of Daroga Singh on 30.12.1971 at 11.30 A.M. He has deposed as P.W. 12. He prepared a sketch map of the place of occurrence (Ext. 7). He also seized the motor-cycle bearing no. BRF 6393 from the Darwaja of Nathuni Tiwary. 5. Dr. Sitaram Prasad of Sadar Hospital, Motihari held post mortem examination on the dead body of Daroga Singh on 30.12.1971 at 11.30 A.M. He has deposed as P.W. 12. According to him the following ante-mortem injuries were found in the autopsy :- (1) a sharp cutting injury on the forehead of obliquely places upper part towards left and lower towards right of size 3" x ½" x 3/10"; (2) a sharp cutting injury on the right occipital prominence of the scalp late- rally placed size 3"x ½"; (3) an incised punctured wound on right side of chest and scapular line, size 1" x ½" x chest cavity; (4) one incised punctured wound on left side back 1 ½" x ½" x abdomeninal cavity cutting the posterior abdominal wall, the paritorium and rupturing the left kidney from behind formally making an incised wound on the anterior surface of the kidney of the size of ½" x ½"; (5) one incised punctured wound 1¼" x 1/3" x abdominal cavity situated on the back of left side abdomen 1" below Injury no. 4 : (6) one incised puntured wound on back of lower part of right side chest 2" x ¾" x abdominal cavity cutting the posterior (hest wall, the plura, the posterior surface of right lower lobe of lungs, the diaphragm and posterior surface of right lobe of liver and producing an incised wound of 3" x 1/3" x liver tissue : (7) one incised punctured wound on right buttock on the back 1" x ¾" x 1/3"; (8) one incised punctured wound on left buttock on the back size 1 ¼" x ¾" x 1¼", right plural cavity contained half pint of fluid blood vide the paritonial cavity contain 2 ½" pints of fluid blood. There was great extravasation in the tissue' in and around the injuries. According to him the injuries were caused by sharp pointed weapon such as Bhala. In his opinion the death of Daroga Singh was caused due to shock and haemorrhage on account of the injuries mentioned above. The age of the injuries, according to him, was within 4 hours. There was great extravasation in the tissue' in and around the injuries. According to him the injuries were caused by sharp pointed weapon such as Bhala. In his opinion the death of Daroga Singh was caused due to shock and haemorrhage on account of the injuries mentioned above. The age of the injuries, according to him, was within 4 hours. At about 12.30 P.M. on 30.12.1979 he held post mortem examination on the dead body of Bacha Tiwary and found the following enter-mortem injuries :- (1) one incised punctured wound on right cheek size 1" x ½" x cavity of mouth; (2) one incised punctured wound on the right side of the neck size 1½" x ½" x 2" (3) one incised puntured wound on right side of neck 1¼" x ¾' x 1¾" one inch in front of injury no. 2; (4) One incised punctured wound on left side of neck (5) one incised punctured wound on the lower part front of right side chest 2" x ¾" x abdominal cavity cutting the interior chest wall, the plura, anterior surface of the right lower lobe of the lungs, the diaphragm, the left lobe of liver and anterior wall of stomach producing an incised wound ¾" x1/3" interior surface and entering interior surface and entering the stomach cavity; (6) one incised punctured wound on front of lower part of right size chest 1½" x RS" x chest cavity; (7) one incised wound on upper part of right pinna 1" deep. (8) Right plural cavity contained 3/4 pints of fluid blood while the peritorial cavity 3 pints of fluid blood. There was great extravasation blood in the tissue in and around the injuries. According to him all the injuries' were caused by sharp pointed weapon such as Bhala. Injury no. 7, in the opinion of the doctor, might be caused by sharp cutting weapon such as Garasa and Farsa. Death in his opinion was caused due to shock and haemorrhage and the age of the injury from the death was within 24 hours. The post mortem examination reports are Exhibit nos. 2 and 2/1. 6. The prosecution has examined several witnesses to prove that the appellants were the assailants. They can be divided into two groups. The first group consists of eye witnesses. P.Ws. The post mortem examination reports are Exhibit nos. 2 and 2/1. 6. The prosecution has examined several witnesses to prove that the appellants were the assailants. They can be divided into two groups. The first group consists of eye witnesses. P.Ws. 3, 5 and 8, namely, Gagandeo Thakur, Iddu Mian and Rajbanshi Singh of villages Gidha, Kauwaha and Bankatwa respectively. In the other group consisting of those who came with the informant (P.W. 11) and have deposed that Bacha Tiwari and Daroga Singh named the assailants and/or on the situation at Ramdeni Tiwary's (the informant's) arrival are P.Ws. 1, 2, 4, namely, Jogendra Singh of village Kaulaha, Jagdeo Singh of village Bhakhni, and Dhanuka Thakur of village Kaulaha. 7. Mr. Brajkishore Prasad, learned counsel for the appellants has not disputed that Bacha Tiwary and Daroga Singh were assaulted at road crossing near village Bankatwa and they died due to the injuries caused to them in the assault on the date and time of the alleged occurrence. He has, however, submitted that the story that Bacha Tiwary and Daroga Singh named their assailants to the informant, Ramdeni Tiwary when he came after learning about the assault from Nand Kishore Pandey is not acceptable and has drawn our attention to the evidence in this regard and the discussions of the evidence of the witnesses on this by the learned Additional Session Judge. He has further submitted that the evidence of P. Ws. 3 and 8, namely Gagandeo Thakur, and Rajbanshi Singh should not be accepted because they are admittedly inimical to the appellants and are servants of the first informant, Ramdeni. Tiwary. The prosecution has impeached their evidence by cross-examining them, because they have not substantially proved the prosecution case. P.W. 5 Iddu Mian who alone has come forward to support the prosecution case, is also a servant of the informant and inimical to the appellants. His evidence alone, according to Mr. Prasad is not sufficient for holding that the prosecution has proved its case beyond reasonable doubt. He has taken us to the contents of the evidence of the prosecution witnesses to show, apart from the partisan character of the witnesses, inherent contradiction in their evidence and has submitted that the prosecution has not been able to prove beyond reasonable doubt that the appellants assaulted Bacha Tiwary and Daroga Singh. Mr. He has taken us to the contents of the evidence of the prosecution witnesses to show, apart from the partisan character of the witnesses, inherent contradiction in their evidence and has submitted that the prosecution has not been able to prove beyond reasonable doubt that the appellants assaulted Bacha Tiwary and Daroga Singh. Mr. Prasad has submitted that the only independent witness, who according to the prosecution had witnessed the occurrence and informed Ramdeni Tiwary that Bacha Tiwary and Daroga Singh were assaulted by the appellants and some other persons at the road crossing near village Bankatwa, namely, Nand Kishore Pandey, has been withheld by the prosecution. He alone could have unfolded the truth, whether the appellants had assaulted Bacha Tiwary and Daroga Singh or not and whether he told Ramdeni Tiwary that the appellants assaulted Bacha Tiwary and Daroga Singh or not. 8. In Sat Paul v. Delhi Administration (AIR 1976 Supreme Court 294) amplitude of the court's discretion under section 154 and 155 of the Evidence Act has been considered and it has been pointed out that to steer clear of the controversy over the meaning of the terms "hostile" witness, "adverse" witness, "unfavourable" witness which has given rise to .considerable difficulty and conflict of opinion in England, the authors of the Indian Evidence Act, 1872 seem to have advisedly avoided the use of any of those terms so that, in India, the grant of permission to cross-examine his own witness by' a party is not conditional on the witness being declared "adverse" or "hostile". Whether it be the grant of permission under section 142 to put leading questions or the leave under Section 154 to ask questions which might be put in cross-examination by the adverse party, the Indian Evidence Act leaves the matter entirely to the discretion of the Court. Speaking for the court Sarkaria, J. has said:- "... ...The discretion conferred by section 154 on the court is unqualified and untrammelled, and is apart from any question of "Hostility". It is to be liberally exercised whenever the court from the witness's demean our, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. It is to be liberally exercised whenever the court from the witness's demean our, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. The grant of such permission does not amount to an adjudication by the court as to the veracity of the witness. Therefore, in the ORDER :granting such permission, it is preferable to avoid the use of such expressions, such as "declared hostile", "declared unfavourable" the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and conflict that has so long vexed the English Court". Although almost stated as a preamble in the JUDGMENT :, after taking notice of several decisions of different courts, it has been pointed out :- "From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole with due caution and care, accept in the light of the other evidence on the, record that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as matter of prudence, discard his evidence in toto", It must work as a reminder to all courts that they should not causually brand a witness 'hostile' or 'unfavourable' and act in their, JUDGMENT : to see, whether there is still some ring of truth i.e., that may inspire confidence to hold that a certain person is guilty of committing the offence. The view taken in Sat Paul's case has been reterated in Syed Akbar v. State of Karnataka (A.I.R. 1979 Supreme Court 1848). 9. P. Ws. 3 and 8 have been termed 'hosle', although they have spoken as they spoke before the police that they saw the occurrence and saw Bacha Tiwary and Daroga Singh being assaulted and in that they recognised atleast four or five of the appellants. Their testimony is not inconsistent with the evidence of P.W. 5, who has similarly deposed that he saw the occurrence and assault upon Bacha Tiwary and Daroga Singh by the appellants, except in that part in which the say about their identifying the assailants. P.W. 2. Gagandeo Thakur, has fairly admitted, when cross-examined by the defence that Ramdeni Tiwary is his master and further that his brother, Dhora Thakur was convicted in a case of theft in the house of appellant Ramasis Mahto. He bas deposed that be had gone to Bankatwa in a bullock cart to bring paddy and when he was returning, he saw Bacha Tiwary and Daroga Singh on a motor-cycle near the road crossing. He saw four-five persons coming from the western side with Bhala, Lathi and Farsa and assaulting them. He recognised amongst the assailants the appellant, Ramashish Mahto, who assaulted Bacha Tiwari with a Bhala and when Bacha Tiwary and Daroga Singh fell down because the motor-cycle fell down after assault upon Bacha Tiwary, they were further assaulted and amongst the assailants he recognised Ramaji Mahto (appellant no. 4), Awadhesh Mahto (appellant no. 10) and Hiri Rai (appellant no. 7). Rajbanshi Singh (P.W. 8) bas similarly deposed and said that he was cutting grass in a field when he heard noise and rushed towards the place of occurrence. He saw 12-14 persons assaulting Bacha Tiwary and Daroga Singh. He recognised amongst the assailants appellant no. 1 (Ramasis Mahto), appellant no. 3 (Ramautar Rai) and appellant no. 7 (Hari Rai) and appellant no. 9 (Jagarnath Bhagat) P. W. 5 has deposed that he had gone to Semra Railway Station with sugar-cane on a tyre cart and was returning with his bullock to his house, when he saw Bacha Tiwary and Daroga Singh and Nand Kishore Pandey on a cycle. He also saw Gagandeo. He was behind him. When the motorcycle reached the road crossing near village Bankatwa, he saw 12-14 persons emerging from a sugar-cane field. He also saw Gagandeo. He was behind him. When the motorcycle reached the road crossing near village Bankatwa, he saw 12-14 persons emerging from a sugar-cane field. He also that they started assaulting Bacha Tiwary and Daroga Singh, who fell down form the motor-cycle. He raised alarm. He recognized amongst the assailants all the appellants. When he raised alarm, Jugul Singh (P.W. 6), Rajbanshi Singh (P.W. 8) and one Ramdhani Singh of village Bankatwa came running. In the meanwhile the accused persons-escaped towards western side. And Kishore Pandey went towards village Gidha and he (P.W. 5) went to his village home. While he was going towards his home, he met Ramdeni Tiwary, Jogendra Singh (P.W. 1) Dhunka Thakur (P.W. 4) and Nand Kishore Pandey and some constables. He returned with them again to the place of occurrence. 10. I have already noticed that P.W. 11, Ramdeni Tiwary, learnt about the occurrence from Nand Kishore Pandey. He has deposed that when he came at the road crossing near village Bankatwa, he saw his son Bacha Tiwary and Daroga Singh lying injured on the road. He has claimed that he had a talk with Bacha Tiwary and Bacha Tiwary told him that be was assaulted by the appellants. He has also deposed that Daroga Singh also named his assailants before him. P.W. 8, who has claimed to have returned once again with Ramdeni Tiwary and others, has supported P.W. 11 by saying that Ramdeni Tiwary had some talk with Bacha Tiwary and Bacha Tiwary told him some thing. P.W. 11 is supported about his so called talk with Bacha Tiwary and Daroga Singh by P.Ws. 1, 2 and 4 also 11. P.W. 12, who bad held the post mortem examination has however, said when cross-examined that there was every possibility of the two victims becoming unconscious after the injuries and after so many injuries it was expected that they were not in a position to speak. It is some what strange why after receiving information about the occurrence from Nand Kishore Pandey and knowing the names of the assailants from him, Ramdeni Tiwary decided to get the information affirmed by the victims themselves. It is some what strange why after receiving information about the occurrence from Nand Kishore Pandey and knowing the names of the assailants from him, Ramdeni Tiwary decided to get the information affirmed by the victims themselves. It seems reasanable, an the facts of this case, to hold that Bacha Tiwary and Daroga Singh were not in that state of Health and mind that they could talk and talk as to how they were assaulted and who assaulted them with what weapon. But to discredit the eye witness account by P.Ws. 3, 5 and 8 merely because the prosecution has not depended merely on their evidence and chosen to introduce a further story of Bacha Tiwary and Daroga Singh disclosing the names of their assailants, does not appeal to be proper. P.W. 5 has admitted that he is a servant of P.W. 11 and like P.W. 3 he has candidly stated about the animus which may be in existence from before. But taking together, the evidence of P.Ws. 3,) and 8, it is obvious that they were in a position to see the assault and they have given a correct account of assault witnessed by them. 12. Mr. Prasad has submitted that while P.W. 3 has said that only four-five people assaulted, who came from the western side, P.Ws. 5 and 8 have asserted that the assailants were twelve to fourteen. This, however, is not such a contradiction that the evidence of P.W. 3 should be rejected. P.Ws. 5 and g have said that the assailants were twelve-fourteen. P.W. 8 recognised amongst them only four of the appellants. P.W.3 has said that the assailants were four or five, but bas recognised five of the appellants amongst the assailants. They fully corroborate the evidence of P.W. 5 on the place, time and manner of assault. 13. Mr. Prasad has contended that the prosecution has withheld atleast one materia1 witness who could unfold the truth, namely, Nand Kishore Pandey. It is admitted by the prosecution that Nand Kishore Pandey was the first person to narrate the occurrence to P.W. 11, the informant, and according to the eye witnesses, he saw the assault. He is an independent witness. Mr. Prasad has submitted that his non-examination is deliberate and the prosecution has denied just ice to the appellants by not examining him. 14. He is an independent witness. Mr. Prasad has submitted that his non-examination is deliberate and the prosecution has denied just ice to the appellants by not examining him. 14. In the State of U.P. and another v. Jaggo alias Jagdish and others (A. I. R. 1971 S.C. 1586) it has been pointed out that the purpose of a criminal trial is not to support at all costs a theory but to investigate the offence and to determine the guilt or innocence of the accused and the duty of a public prosecutor is to represent the administration of justice so that the testimony of all the available eye witnesses should be before the court. Referring to a judgement by Lord Roche in Stephen Seneviratne v. The King (A. I. R. 1936 P. C. 289) A. N. Ray, J. speaking for the court has said :- "Lord Roche in Stephen Seneviratne v. The King (A. I. R. 1936 P. C. 289) referred to the observation of Jenkins, C.J. and said that the witnesses essential to the unfolding of the narrative on which the prosecution is based whether the effect of their testimony is for or against the case for the prosecution. That is why this court in Habeeb Mohammad's case ( 1954 SCR 475 =A.I.R. 1954 S.C 51) said that the absence of an eye witness in the circumstances of the case might affect a fair trial. On behalf of the appellant it was said that Ramesh Chand was won over and therefore the prosecution could not call Ramesh. The High Court rightly said that the mere presentation of an application to the effect that a witness bad been won over was not conclusive of the question that the witness has been won over. In such a case Ramesh could have been produced for cross-examination by the accused. That would have elicited the correct facts. If Ramesh were an eye-witness the accused were entitled to test his evidence particularly when Lalu was alleged to be talking with Ramesh at the time of the occurrence." 15. A witness is a material witness and his evidence is necessary for unfolding the truth or not has to be determined with reference to the fact, of each case. It is not, however, the law that every eye-witness should be examined. A witness is a material witness and his evidence is necessary for unfolding the truth or not has to be determined with reference to the fact, of each case. It is not, however, the law that every eye-witness should be examined. In a given case where it is reasonably not possible for the prosecution to produce a witness and the court is satisfied that the prosecution has no reason of its own to withhold the witness, it may not insist for examination of such a witness. In Soma Bhai v. State of Gujrat (A. I. R. 1975 Supreme Court 1453) a similar contention was disposed of by the Supreme Court in the following words :- "Before adverting to the merits of the case, we might dispose of a serious comment made by the learned counsel for the appellant against the conduct of the prosecution in this case. It was argued that although the genesis of the occurrence was the collection of the prosecution party at the house of Jiva Natna, neither Jiva Natha nor Bai Bhani wife of Jiva Natha was examined. This argument does not appeal to us because Jiva Natha was not present at the time of the occurrence having left his house even before the prosecution party reached there. Bai Bhani was undoubtedly present at the time when the occurrence took place and was a material witness. But there is sufficient evidence to show that she was a close relation of the accused and the prosecution had given an application that they were giving her up because she had been gained over by the accused. In these circumstances the non-examination of these two, persons does not at all destroy the fabric of the prosecution case." 16. In the instant case the prosecution took steps for examination of Nand Kishore Pandey by asking for the processes to be issued for his examination as a witness, including a prayer made by the Additional Public Prosecutor on 7.6.79 for issuing warrant of arrest for his appearance. Subsequently however, the learned Additional Public Prosecutor conducting the case filed a petition stating that although Nand Kishore Pandey had come to the court but was not willing to depose as he had been gained over by the accused persons. Subsequently however, the learned Additional Public Prosecutor conducting the case filed a petition stating that although Nand Kishore Pandey had come to the court but was not willing to depose as he had been gained over by the accused persons. I would have given some more thought, whether Nand Kishore Pandey's non-examination has caused prejudice to the appellants' or not had not found from the trend of evidence that the appellants and the informant clearly belonged to two groups. There is sufficient material to show in the evidence of the prosecution witnesses that the appellants represent a group which had been agitating against the landholders and there had been several litigations always widening the rivalry instead of diminishing it. 17. There are eye witnesses who have substantially proved the prosecution case of assault and although they in one sense are partisan and some sort of animus may also be found to be existing, yet they do not appear to be eagar to falsely implicate any and every person. Merely because some witnesses appear to be partisan or inimical, their evidence cannot be discarded. Their evidence has to be examined with some caution, but caution cannot mean rejection. Non-examination of Nand Kishore Pandey has been substantially explained by the prosecution. If the defence or the court thought that Nand Kishore Pandey's examination was necessay it was open to examine, Nand Kishore Pandey by sommoning him to appear. Nand Kishore Pandey could have, if the informant's evidence is true, lent support to the prosecution and made the prosecution case stronger than what it is to-day, as P.Ws. 3 and 8 have claimed to have identified only four five of the appellants, while according to the evidence of P.W. 11, Nand Kishore Pandey named all the appellants as the assailants of Bacha Tiwary and Daroga Singh. But his non-examination has not affected the fabric of the prosecution version. 18. Adverting to the evidence of P. Ws. 3, 5 and 8 once again, however, I, find that so far appellant no. 1 is concerned, be has been identified by all the three of them. So is the case of appellant nos. 7 and 9. Appellant no. 3 has been identified by P. Ws. 5 and 8, but P.W. 3 has not identified appellant no. 3. Appellant no. 4 has been identified by P. Ws. 1 is concerned, be has been identified by all the three of them. So is the case of appellant nos. 7 and 9. Appellant no. 3 has been identified by P. Ws. 5 and 8, but P.W. 3 has not identified appellant no. 3. Appellant no. 4 has been identified by P. Ws. 3 and 5 but he has not been identified by P.W. 8. Although P.W. 5 has identified all the appellants, on his evidence alone I am not inclined to uphold the conviction of those who have not been identified by the other two eye witnesses, namely, P. Ws. 3 and 8. Granting all the benefits to the appellants, where an the three namely P.Ws. 3, 5 and 8 are one in identifying, there is no reason why the prosecution case should not be accepted. As a result of the discussions made by me above, I am of the view that there is sufficient evidence to uphold the conviction of appellant nos. 1, 7 and 9. 19. In the result, the appeal on behalf of appellant no. 1, Ramasis Mahto, appellant no. 7 Hari Rai and appellant no. 9 Jagarnath Bhagat is dismissed. Their conviction under section 302/149 of the Indian Penal Code is upheld and accordingly the sentence of rigorous imprisonment for life is affirmed. They shall surrender and they shall be taken in custody. Their bail bonds are cancelled. The appeal on behalf of appellants nos. 2, 3, 4, 5, 6, 8, 10, 11 and 12, namely, Ramwatar Rai, Lalbahadur Rai, Ramji Mahto, Chandradeo Mahto, Chandradeo Rai, Jamuna Bhagat, Awadhesh Mahto, Jagarnath Singh and Bijuli Rai is allowed. Their conviction under section 302/149 of the Indian Penal Code are set aside, they are acquitted of the charges levelled against them. They are discharged of their respective bail bonds. I agree.