JUDGMENT Both these appeals have been heard together with the consent of the parties, since they arise out of a common judgment, and are being dispose" of by this common Judgment which will govern both the appeals. There were nine accused persons on trial. Accused Aslam Mian and Anjar Mian are appellants 1 and 2 respectively in Cr. Appeal no. 594/83, whereas rest of tae accused persons have filed separate appeal, which has been numbered as Cr. Appeal No. 582/23. They are Basir Mian; Nonajir Mian, Nanhu Mian, Alam Mian, Jumman Mian, Mumtaj Mian and Jalo Mian. 2. All the appellants, i.e., the appellants of Cr. Appeal No. 582/83 and Cr. Appeal No. 594/83, who are nine in number as stated above, have been convicted for the offence under section 302, read with section 149, of the Indian Penal Code (hereinafter referred to as 'the Code') and each of them have been sentenced to undergo rigorous imprisonment for life. Appellants Anjar Mian and Aslam Mian have been convicted under section 302 of the Code also and each of them have been sentenced to undergo rigorous imprisonment for life under this count as well Appellant Aslam Mian, Anjar Mian Basir Mian and Monajir Mian have further been convicted under section 27 of the Arms. Act, and each of them have been sentenced to undergo rigorous imprisonment for two years. Appellants Aslam Mian Anjar Mian, Basir Mian, Monajir Mian, Mumtaj Mian and jafo Mian have further been 'convicted under section 149 of the Code and each of them have been sentenced to undergo rigorous imprisonment for one year. Appellant Aslam Mian, Nonajir Mian, Nandu Mian and jumman Mian have also been convicted under section 323 of the Code and each of them have been sentenced to undergo rigorous imprisonment for one year. Besides, appellants Basir Mian and Monajir Mian have also been convicted under section 307 of the Code and sentenced to undergo rigorous imprisonment for seven years each. Appellant Basir Mian has also been convicted under section 326 of the Code, but no separate sentence has been awarded for this offence All the sentences awarded against the appellants by the learned trial court have, however been ordered to run concurrently. 3. Appellant Basir Mian has also been convicted under section 326 of the Code, but no separate sentence has been awarded for this offence All the sentences awarded against the appellants by the learned trial court have, however been ordered to run concurrently. 3. According to the prosecution case the place of occurrence lies in the market of village Chandra dip which is situate within the jurisdiction of Sikandara Police Station in the district of munger, whereas the two deceased and the victims of this case as well as the prosecution witnesses belong to village Anjunar situate within Pakri Barama Police Station in the district of Nawadah, which is at a distance of 1½ k.m. from the place of occurrence. Some persons of village Anjunar have their shops in Chandradip Market. 4. On 7/5/1982 at 9 A.M. while P.W.10 Indradeo Singh (informant) of village Anjunar was sitting in his grocery shop at Chandra dip Chowk, appellant Aslam Mian @ Aslam Mukhiya came to his shop and enquired about the price of ‘Chohara’ P.W.10 Indradeo Singh disclosed the price of the same @ Rs. 25/- per k. g. At this appellant Aslam Mian told him (P.W. 10) that the price of 'Chohara' was only Rs. 22/- per k. g. whereas he (P.W. 10) was selling the same at a higher rate of Rs. 25/-- per kg. On account of this there was some altercation between the informant (P.W.10) and appellant Aslam Mian. Allegedly in the meantime. appellant Juman Mian and appellant Basir Mian of the Same village, i.e., Chandradip also came there and joined hands with appellant Aslam Mian, who became infuriated and ordered appellants jumman Mian and Basir Mian to assault, P.W. 10 Indradeo Singh, as he was selling 'Chohara' @ R,. 25/-- per k. g. instead of Rs. 22/- per k. g, consequently, appellant Jumman Mian deal to lathi blow on the left part of the head of Indradeo Singh (P.W.10) causing bleeding injury. On the call being Given by appellant Aslam, appellants Nanhu Mian, Manajir Mian and Aslam Mian came there. They entered into the shop of P.W.4 Ram' Sharan Singh and badly assaulted him with lathi at that time, P.W. 8 Karu Singh,' happened to come from Jamui on a trakker and had got down at Chandradip Chowk and he too was assaulted by appellant Nanhu Mian with lathi. They entered into the shop of P.W.4 Ram' Sharan Singh and badly assaulted him with lathi at that time, P.W. 8 Karu Singh,' happened to come from Jamui on a trakker and had got down at Chandradip Chowk and he too was assaulted by appellant Nanhu Mian with lathi. Thereafter all the aforesaid accused persons went back to their village and soon, came there with deadly weapons. Appellant Aslam Mian, Anjar Mian, Basir Mian and Monajir Mian were armed with guns, whereas appellants Jumman Mian, Nanhu Mian and Alam Mian had lathies in their hands. Appellant Jafo Mian had a shaif and appellant Mumtaj Mian had a bomb. On hulla Arjun Singh (not examined), Awadh Singh (P.W. 2), Uchit Singh (deceased), Arvind Kumar (another deceased), Sunil Kumar (P.W. 7). Nawal Singh (P.W. 6) and others of village Anjunar came there. On seeing the aforesaid persons, the appellants, who were armed with guns, started firing on them as a result of which the people started running here and there. It is further alleged that appellant Aslam Mian alias Aslam Mukhiya chased Uchit Singh (deceased) and shot at him as a result of which Uchit Singh fell down north of the road in the field in which chilly plants were standing. Appellant Anjar Mian also shot at Arbind Kumar (another deceased) who also fell down south of the Noni Road in a field in which chilly plants were standing. Arbind Kumar died on the spot. It is further alleged that appellants Alam Mian and Nanhu Mian caught both the legs of Uchit Singh, who was lying an injured condition in the aforesaid chilly field and dragged him towards south of the Kabristan after crossing the road. Appellants Alam Mian and Nanhu Mian, thereafter set fire to the pile of straws stocked nearby and throttled the neck of Uchit Singh as a result of which he also died. Appellant Basir Mian also fired at Nawal Singh injuring him on his right hand appellant monajir Mian is alleged to have tired at Sunil Singh causing injury in his thigh. Jalo Singh (P.W.1). Anup Singh (P.W. 3) and others are said to have seen the aforesaid occurrence. 5. According to the prosecution case, there was a police out post in the aforesaid market of village Chandradip itself. Jalo Singh (P.W.1). Anup Singh (P.W. 3) and others are said to have seen the aforesaid occurrence. 5. According to the prosecution case, there was a police out post in the aforesaid market of village Chandradip itself. On the date of occurrence, i.e., 7-5-1982, P.W. 15 Balmiki Sharma was posted there at the police out-post as the writer constable and S. I. Kashinath Rai was the incharge of the aforesaid Police out-post, but on that date S. I. Kashinath Rai. was on leave, As it appears from the evidence of P.W. 15 Balmiki Sharma and the entries made in the station diary (Ext. 6) of Chandradip Police out post that on the date of occurrence i.e. on 7-5-1982 at 8.45 A.M. P.W. 16 Balmiki Sharma heard hulla on the road. He came out of his office and saw that altercations were going on between the villagers of two villages i.e. Chandradip and Anjunar. Hot exchanges of words were going on. He tried to intervene whereupon on of the villagers of village Chandradip said that he (P.W. 15) should also be assaulted, but some other persons stopped them from doing so. He also found that brick-batting was going on. He further found that P.W. 4 Ram Sharan Singh was being chased by some persons and he (P.W. 4) came to the Police out-post in an injured condition. He fell down there and became unconscious. He (P.W. 15) sent P.W. 4 Ram Sharan Singh to Sikandara on a truck and thereafter he also rushed to Sikandara Police Station and informed about the occurrence to the Officer-in-charge of Sikandara Police Station at 9:30 A.M. It may be pointed out at this place that the aforesaid Chandra dip Police Out post was within the jurisdiction of Sikandra Police Station P.W. 16 Radha Krishna Singh, the Officer in-charge of Sikandara Police Station, after getting information from P.W. 15 that there was likelihood of breach of peace in village Chandradip proceeded towards the place of occurrence along with P.W. 15 Balmiki Sharma and armed force reaching there at 10•30 A. M. Before that P.W. 16 Radha Krishna Singh had sent P.W. 4 Ram Shar8n Singh, an injured, to Sikandara Hospital for examination of his injuries and report. After reaching at Chandradip Police out-post, P.W. 16, the Officer-in-charge of Sikandara Police Station, got information that there had been firing in Chandradip and hence he sent an information to the Subdivisional Magistrate Jamui and to the Officer-in-charge of Pakaribarawan Police Station, P.W. 16 thereafter went towards village Chandradip and found that One heap of straw has burning and a dead body was lying in the filed. No male member was' found in the village. Only female were there, who had closed the doors of their houses from inside. He arranged for keeping watch over the dead body thereafter he proceeded towards village Anjunar where near the tube-well of Gita Singh P.W. 16 the investigating Officer found another dead body. There he also met Sunil Kumar Singh (P.W. 7), Karu Singh (P.W. 8) and Nawal Kishore Singh (P.W.6) He also took steps for keeping watch over the another dead body. P.W. 16 could not record the statements of aforesaid three injured persons (P. Ws. 6, 7 & 8), since they were not in a position to make any statement. Thereafter, P.W. 16 again returned to Chandradip Police Out-post where he met P.W. 10, Indradeo Singh. P.W. 16 thereafter got the Fardbeyan recorded by P.W. 15 Balmiki Sharma at Chandradip Police out-post on the Statement of aforesaid Indradeo Singh (P.W. 10) on the same date, i.e., on 7-5-1982 at 1 P.M. The Fardbeyan of Indradeo Singh (P.W. 10) has been marked as Ext. 1 He (P.W. 16) sent the aforesaid Fardbeyan (Ext, 1) to the Sikandara Police Station for instituting a case, where Formal First Information Report (Ext. 7) was drawn up on the basis of the aforesaid Fardbeyan (Ext. 1); by S. I. Janak Singh (not examined). P.W. 10 Indradeo Singh, the informant of the present case, was further examined by P.W. 16, the Investigating Officer. Thereafter P.W. 16 went near the dead body of deceased Uchit Singh which was lying towards south of aforesaid Kabargah and held inquest over the dead body of Uchit Singh in presence of witnesses, namely, Ram Balak Singh (not examined and Chandrika Pd. Singh (P.W. 12). The inquest report has been marked as Ext. 8. Thereafter P.W. 16 went near the dead body of deceased Uchit Singh which was lying towards south of aforesaid Kabargah and held inquest over the dead body of Uchit Singh in presence of witnesses, namely, Ram Balak Singh (not examined and Chandrika Pd. Singh (P.W. 12). The inquest report has been marked as Ext. 8. Thereafter the Investing Officer (P.W. 16) went near the tube-well of Gita Singh where the another dead body, i. e., the dead body of Arbind Kumar was lying and held inquest On the dead body of Arbind Kumar in presence of the aforesaid witnesses. The inquest report was prepared and the same has been marked- as Ext. 8/1 Dead body chalans were prepared with respect to both the dead bodies and both the dead bodies were sent to Jamui through P.W. 15 Balmiki Sharma and another constable Shree Krishna Sharma for post-mortem examination. After sending the two dead bodies for post-mortem examination. P.W.16, the Investigating Officer, inspected the place of occurrence in presence of the informant Indradeo Singh (P.W. 10). 6. The place of occurrence, according to P.W. 16, the Investigating Officer, was a field in village Chandradip. He found copious blood like substance in that field. Stems of dried chilly plant were there in the said field. The road leading to village Noni was at a distance of 112 ft. south. He also found dragging marks of dead body from the chilly field. The trial of dragging mark was leading towards south. P.W. 16 found one Lungi which was stained with blood like substance. Dragging mark was further round towards south of that place. He also found one towel at a distance of 319 ft, from the aforesaid chilly field. The dead body of Uchit Singh was found near the Kabristan, which was towards village Chandradip. He also found one deep of straw burning adjacent south of the said Kabristan and towards adjacent such of the aforesaid heep of straw the dead body of Uchit Singh was lying. Some blood like substance was also found there. Thereafter, the Investigating Officer (P.W. 16) went to the grocery shop of P.W. 10 Indradeo Singh the informant of the present case, which was situate towards south of the road running from Jamul to Nawabab. Some blood like substance was also found there. Thereafter, the Investigating Officer (P.W. 16) went to the grocery shop of P.W. 10 Indradeo Singh the informant of the present case, which was situate towards south of the road running from Jamul to Nawabab. The shop of the informant (P.W. 10) was racing towards north of the road shop of Ram Sharan Singh (P.W. 4) was also in Chandradip Market. The place where the dead body of Arbind Kumar was found was at distance of 250 to 300 Yards towards north-west of Nonia Road. Village Chandradip was at a distance of 250 Yards towards south of the aforesaid chilly field. Thereafter the Investigating Officer (P.W. (6) prepared a rough sketch map of the place of occurrence, which has been marked as Ext. 9". The Investigating Officer (P.W. 16) also seized earth containing blood like substance Lungi and towel in presence of witnesses namely, Jalo Singh (P.W. 1), and Anup Singh (P.W. 3) and prepared a seizure list. The said seizure list has been marked as Ext. 5. He (P.W. 16) again went to village Chandradip in search of accused persons but none of them were found. Thereafter, he again returned to Chandradip Chowk, where he examined Jalo Singh (P.W.1), Anup Singh (P.W. 3) Ashok Kumar Sao (P.W. 9), Balmiki Sharma (P.W. 15) and others. In the meantime the District Magistrate and the Superintendent of Police) munger, also reached at the spot and they supervised the investigation. He also searched the houses of accused persons, but nothing incriminating was found." 7. It appears that on the same date) P.W. 11 Dr. Om Prakash Sahir) who was then posted at Sikandara, on 7-5-1982 at 6:l5 P.M. examined Indradeo Singh (P.W. 10), the informant of the present case and found the following injuries:- 1. On lacerated wound on the scalp I" X 1/2 X Skin deep on the left side near lateral boarder of left partial bone; II One abrasion 1/2 X 1/2 with' swelling on right leg," Both the injuries according to the doctor (P.W. 11) were simple and appeared to have been caused by hard-blunt substance such as lathi, Age of injury wag within 2 ½ Hrs. The injury report has been marked as Ext. 2. 8. P.W. 13 Dr. The injury report has been marked as Ext. 2. 8. P.W. 13 Dr. Dharamraj Roy, who was then posted at Jamui Hospital as the Deputy Superintendent examined Karn Singh (P.W. 8) on 7-5-1982 at 330 P.M. and found one lacerated injury on the right side of the forehead. 1¼ X ¼ skin deep The age of the injury was within 12 hours. According to the opinion of the doctor (P.W. 13) the injury was simple and was caused by hard blunt substance such as lathi. The injury report has been marked as Ext. 2/2. On the same date at 3:25 P.M. he also examined Nawal Singh (P.W. 6)) and found one pellet injury on the right forearm to the middle round in shape with lacerated margin ¼ in diameter. The margin were charred. On X' ray facture of the right ulna with shadow of pellet inside the wound was found. The injury was grievous in nature and it was caused by gun shat. The age of the injury was within 12 hours The injury report of Nawal Singh (P.W. 6) has been marked as Ext. 2/1 On the same date at 3:45 P.M. he (P.W. 13) examined Sunil Kumar Singh (P.W.7) and found one round wound on the left thigh in the middle in the outer side 1/2" in diameter with lace rated and charred margins. On 'X ray examination a pellet was found inside the above wound The injury was simple and caused by gun shot. The age of the injury was within 12 hours. The injury report of Sunil Kumar Singh has been marked as Ext. 2/3. 9. The aforesaid doctor, namely, Dr. Dharamraj Roy (P.W. 13) on 8-5-1982 at 7 A.M. held postmortem examination on the dead body of deceased Uchit Singh, who was a male aged about 30 Years and found the following antemortem injuries on his person ;- i. One lacerated wound on the right exilla round in shape with charred margins about ¼ in diameter. " ii. Echymosis on the left side of the neck 4” X 1 iii. Echymosis on the right arm 3" X 1" iv. Abrasions On the right hand and forearm 3” X ½ V. Abrasion on the front of the right knee 3’ x 1" vi. " ii. Echymosis on the left side of the neck 4” X 1 iii. Echymosis on the right arm 3" X 1" iv. Abrasions On the right hand and forearm 3” X ½ V. Abrasion on the front of the right knee 3’ x 1" vi. Abrasion on the left knee on the front 2 ½ X 1" On dissection the was subcutaneous hemorrhage on the right arm, front of neck and one big size pellet was recovered and preserved, the pellet passed through the firth carvical vertabra and crossed on the other side and was lying in subcutaneous tissues. The time elapsed since death was within 24 hors. In the opinion of this doctor (P.W. 13) the injury no. 1 was caused by gun shot while injury no. ii was caused by hands if one attempts at throttling. The injuries in the opinion of this doctor could have been caused in the process of dragging the injured. According to this doctor the death was caused due to shock and hemorrhage as a result of the injuries mentioned above., Particularly injury no. i and ii. On the same date at about 7'30 A. M. he (P.W. 13) held pest mortem examination on the dead body of Arbind Kumar, another deceased. This dead body wall also of a male aged about 15 years. He found the following antemortem injuries on the dead body of Arbind Kumar :- (i) One round lacerated wound on the front of the chest ¼ in diameter with charred margins. (ii) Lacerated injury on the back of the chest on the left on the mid line of the leavel of the fifth rib. 1" in diameter. According to this doctor (P.W. 13) in jury no. (1) was the wound of exit. On dissection there was fracture of the sternum in the middle. The percardium and the oricle of heart were torn. The lower lobe of the right lung was lacerated and the fifth rib was found to be fractured. In the opinion of this doctor (P.W. 13) the injuries were caused by gun shot and the time elapsed since death was within 24 hours. The death in the opinion of the doctor occurred due to shock and hemorrhage as a result of the injuries mentioned above. Ext. 4 is the postmortem report of deceased uchit Singh, whereas Ext. 4/1 is the post-mortem report of deceased Arbind Kumar. The death in the opinion of the doctor occurred due to shock and hemorrhage as a result of the injuries mentioned above. Ext. 4 is the postmortem report of deceased uchit Singh, whereas Ext. 4/1 is the post-mortem report of deceased Arbind Kumar. 10. 0n 12-5-1981, P.W. 16, the Investigating Officer, examined Ram Sharan Singh (P.W. 4) and Karu Singh (P.W. 6). P.W. 16 thereafter came to village Anjunar and searched for Sunil Kumar Singh (P.W.7). but he could Rot be found. It appears that appellants Jumman Mian, Jafo Mian and Mumtaj Mian surrendered in court on 11-5-1982, whereas other appellants were arrested by the police and forwarded to the court, which remanded them to custody. P.W. 16, the Investigating Officer, examined the accused persons as well. After completing investigation, P.W. 16 the Investigating Officer submitted charge-sheet against all the accused persons namely, the appellants of both the criminal appeals After cognizance and commitment, all the appellants were put on trial. In the trial court charge under two heads were framed against appellant Aslam Mian, first under section 302 of the Code for having committed the murder of Uchit Singh and secondly under section 302/114 of the Code for having abetted the commission of the offence of causing hurt to Indradeo Singh (P.W. 10), Karu Singh (P.W. 8) and Saran Singh (P.W. 4) and for abetting appellants Jumman Mian Alam Mian, Monajir Mian and Nanhu Mian in the commission of the said offence which was committed in consequence of his abatement. At this very stage it may be pointed out that this charge i.e. under the second head framed again the appellant Aslam Mian for the offence under section 302/114 of the Code appears to be redundant and erroneous in view of the fact that from the workings of the charge it does net appear that the commission of murder of any body was abetted. As a matter of fact only the injured persons' have been mentioned in the charge, who have received some injuries, hence the question of framing of charge under section 302/114 of the code does not arise. Appellant Anjar Mian was charged under section 302 of the Code for having committed the murder of Arbind Kumar Appellants Aslam Mian, Alam Mian Nanhu Mian were charged under section 302/34 of the Code for having committed the murder of Uchit Singh in furtherance of their common intention. Appellant Anjar Mian was charged under section 302 of the Code for having committed the murder of Arbind Kumar Appellants Aslam Mian, Alam Mian Nanhu Mian were charged under section 302/34 of the Code for having committed the murder of Uchit Singh in furtherance of their common intention. Appellants Basir Mian and Monajir Mian were charged under two heads, first under section 307 of the Code for firing upon Nawal Singh and Sunil Singh respectively with such intention or knowledge and under such circumstances that, if they by that Act, caused death of Nawal Singh and Sunil Singh, they would have been guilty of murder and they caused hurt to the aforesaid Nawal Singh and Sunil Singh by the said Act, and, secondly under section 324 of the Code for having voluntarily caused hurt to Nawal Singh and Sunil Singh by means of fire-arm, which is an instrument for shooting. Appellant Basir Mian was charged under section 326 of the Code for voluntarily causing hurt to Nawal Singh. Appellant Jumman Mian was charged under section 323 of the Code for having voluntarily caused hurt to Indradeo Singh. Appellant Nanhu Mian was also charged under section 323 of the Code for having voluntarily causining hurt to Karu Singh and Saran Singh, Monajir Mian was also charged under section 323 of the Code for voluntarily causing Hurt to Saran Singh Alam Mian was also charged under section 23 of the Code for voluntarily causing hurt to Saran Singh. All the appellants were further charged under three heads first under section 302/149 of the Code for being members of unlawful assembly in prosecution of the common object of which, viz, in committing murder of Uchit Singh. and Arbind Kumar some of them, namely Aslam Mian, Alam Mian and Nanhu Mian caused murder of Uchit Singh and appellant Anjar Mian caused murder of Arbind Kumar, secondly under section 27 of the Arms Act, for having in their possession arms and ammunitions with intent to use 'the same for unlawful purpose and carried that into effect and thirdly under section 148 of the Code for being members of unlawful assembly and did in prosecution of common abject of such assembly, viz in committing murder of Uchit Singh and Arbind Kumar for having committed the offence of rioting with deadly weapons. 11. The accused person, namely, these appellants pleaded not guilty to the charge. 11. The accused person, namely, these appellants pleaded not guilty to the charge. In the trial court in all 18 witnesses were examined on behalf of the prosecution. The statements of the appellants were also recorded under section 313 of the Code of Criminal Procedure and one witness, namely, Sadanand Prasad was also examined on behalf of the defence. However the case of the defence was that the accused persons were innocent and they had been falsely implicated in the present case and their specific case was that on the alleged date of occurrence i.e., on 7.5.1982 in the morning the had been arrow between the villagers of Chandradip and the prosecution witnesses over the question of sale of Kakaries by a pea, sent of village Hilsa Kotwali at Chandradip Chowk, as a result of which in order to teach a lesson to the villagers of village Chandra dip the villagers of village Anjunar came in a mob) which was led by Indradeo Singh (P.W. 10), the informant of the present case, and Faudi, brother of Indradeo Singh (P.W. 10), who has not been examined in the case. Thereafter they started firing at the villagers of Chandradip and himself defence the villagers of village Chandradip who had licensed gun, in exercise of their right of private defence of person and property they also resorted to firing. According to the defence there was brick batting as well in which some of the prosecution witnesses received injuries. According to the suggestion given to P.W. 1 by the defence, Uchit Singh and Arbind Kumar died in that gun firing and the people of village Anjunar took away the dead body of Arbind Kumar and the dead body of Uchit Singh was left at the spot. 12. The learned trial court at the conclusion of the trial came to the finding that the defence plea of right of private defence was not acceptable and, therefore, he rejected the plea of accused persons, namely, the appellants. It further concluded that the prosecution had satisfactorily proved most of the main charges against the accused. Charge under section 302/149 of the Code had been proved against all the appellant but charge under section 27 of the Arms Act, had been proved against only appellants Aslam Mian. Anjar Mian, Basir Mian and Monajir Mian, since only these appellants were armed with guns and they used the same. Charge under section 302/149 of the Code had been proved against all the appellant but charge under section 27 of the Arms Act, had been proved against only appellants Aslam Mian. Anjar Mian, Basir Mian and Monajir Mian, since only these appellants were armed with guns and they used the same. It also held that charge under section 148 of the Code had been proved against appellants Aslam Mian, Anjar Mian, Basir Mian, Monajir Mian Mumtaj Mian and Jafo Mian. Charge under section 323 of the Code had been proved against appellants Alam Mian, Monajir Mian Nanhu Mian and Jumman Mian for causing hurts to Saran Singh, Karu Singh and Indradeo Singh. According to the conclusion of the learned trial court, likewise charge under section 326 of the Code was proved against appellant Basir Mian for causing hurt to Nawal Singh. Further that charge under section 307 of the Code had also been proved against appellants Basir Mian and Monajir Mian for attempt to kill Nawal Singh and Sunil Singh. It, however, did not pass any order with respect to the charge under section 324 of the Code against appellants Basil' Mian and Monajir Mian since the same Act, constituted offence under section 307 of the Code. Regarding charge under section 302/34 framed against appellants Aslam Mian, Alam Mian and Nanhu Mian, the learned trial court held that the same was not established from the evidence since according to the prosecution evidence it was established that there had been large scale firing in which the accused holding guns opened fires while some among others dragged the dead body. There could not be a small group of accused, namely, appellants Aslam Mian and Nanhu Mian only sharing the same common Intention of killing Uchit Singh, Regarding charge under section 302 of the Code against appellant Anjar Mian far the murder of Arbind Kumar and appellant Aslam Mian for murdering Uchit Singh, the learned trial court held that the aforesaid charge was also proved against the respective appellants. The learned trial court accordingly convicted the appellants and sentenced them as stated in the very beginning. 13. The learned counsel appearing for the appellants has first of all contended that the Fardbeyan (Ext. 1) recorded on the statement of P.W. 10 Indradeo Singh, on the basis of which the First Information Report (Ext. The learned trial court accordingly convicted the appellants and sentenced them as stated in the very beginning. 13. The learned counsel appearing for the appellants has first of all contended that the Fardbeyan (Ext. 1) recorded on the statement of P.W. 10 Indradeo Singh, on the basis of which the First Information Report (Ext. 7) was drawn up and the police case was instituted, is not admissible in evidence since it is hit by section 162 of the Code of Criminal Procedure. In this regard the learned counsel appearing for the appellants has drawn our attention towards the evidence of the Investigating Officer of this case. (P.W. 16) on whose direction the Fardbeyan on the statement of P.W. 10 Indradeo Singh was recorded. In this connection it has been submitted that the Fardbeyan (Ext. 1) is hit by section 162 of the Code of Criminal Procedure since the same had been recorded after the investigation had commenced and thus the statement of P.W. 10 Indradeo Singh, contained in the Fardbeyan (Ext. 1) apparently was recorded in course of investigation and hence it is hit• by section 162 of the Code of Criminal Procedure. In this context it is necessary to refer to the evidence of P.W. 16 and the entries (Ext. 6) contained in the Station Diary. It will be appropriate to state at this stage that in order to find out whether an the aforesaid statement of P.W. 10 Indradeo. Singh as contained in Ext. 1, the Fardbeyan was recorded in course of investigation or not. It appears essential to indicate as to what is meant by the term Investigation according to law. The ward 'investigation' has been defined in the Code of Criminal Procedure Section 2 of the Code of Criminal Procedure deals with 'definitions' The ward 'investigation' has been defined in Clause (h) of section 2 of the Code of Criminal Procedure which run as follows:- "Investigation includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a magistrate) who is authorised by a magistrate in this behalf " So in order to find out whether the investigation had begun prior to the recording of the Fardbeyan (Ext. 1) of P.W. 10 Indradeo Singh, the informant of the present case, or not will be the deciding factor. 1) of P.W. 10 Indradeo Singh, the informant of the present case, or not will be the deciding factor. The evidence of the Investigating Officer (P.W. 16) discloses that at 10 A.M. on 7-5-1982, i. e. on the date of occurrence he was in the inspection Bunglow at Sikandara and at that very time Balmiki Sharma (P.W. 15) the literate constable, came to him and he (P.W. 15) informed him (P.W. 16) that there was likelihood of breach of peace in village Chandradip. We will also refer to the evidence of P.W. 15 Balmiki Sharma in this connection at a later stage. It further appears that P.W. 4 Ram Sharan Singh had reached there in an injured condition, who was sent to Sikandara Hospital along with the injury report (Ext. 2/5). Thereafter P.W. 16 the Investigating Officer started for village Chandradip where he reached at 10.30 A.M. and there at the police out post at Chandradip, P.W. 16 the investigating Officer met Shree Krishna Sharma, constable. P.W. 16 also learnt there about the gun firing. It will be 'proper to point out at this stage that according to the prosecution itself the occurrence had already taken place and the murders had also been committed P.W. 16 thereafter went to village Chandradip and saw the heap of straw burning and also found dead body there. Since 'no male member was found in village Chandradip he went to village Anjunar where near the tube well of Gita Singh, he found another dead body, i.e., the dead body of Arbind Kumar. He also met injured Sunil Singh (P.W. 7), Karu Singh (P.W. 8) and Nawal Singh (P.W. 6). He took steps for keeping watch over the dead body. Thus it is obvious that this police officer namely, P.W. 16 had got sufficient information regarding the commission of a cognizable offence, but did not record the statement of any body of village Anjunar. He took steps for keeping watch over the two dead bodies. Besides he also met three injured persons. He could have at least recorded the statements of either of the three persons, namely, Sunil Singh (P.W. 7), Karu Singh (P.W. 8) and Nawal Singh (P.W. 6), but the explanation given by P.W. 16 the investigating officer in this regard is that the aforesaid three persons were not in a. position to make any statement. He could have at least recorded the statements of either of the three persons, namely, Sunil Singh (P.W. 7), Karu Singh (P.W. 8) and Nawal Singh (P.W. 6), but the explanation given by P.W. 16 the investigating officer in this regard is that the aforesaid three persons were not in a. position to make any statement. There must be other persons in that village. From the above steps "taken by the Investigating Officer (P.W. 16) even after seeing the first dead body near the heap of straw, where he could gather that cognizable offence had been committed it is clear that the same was for the purpose of collection of evidence and it must be held to be a part of the proceeding conducted by him for the aforesaid purpose It will be also a point for consideration as to whether Nawal Singh (P.W. 6), Sunil Singh (P.W. 7) and Karu Singh (P.W. 8), who were of course injured were in a position to make any statement or not. This point will be considered at a later stage and the explanation given by the Investigating Officer, (P.W. 16) in this regard is fit to be accepted or not. P.W. 16 even after going to village Anjunar where it is expected that the persons conversant with the facts of the occurrence must have been available he (P.W. 16) did not record statement of any body. It was not necessary that the Fardbeyan (Ext. 1) should have been recorded only on the statement of an eye witness. Information relating to the commission of a cognizable offence was sufficient for the purpose of recording of Fardbeyan which could have been the basis of the First Information Report as contemplated under section 154 of the Code of Criminal Procedure Requirement of Section 154 of the Code of Criminal Procedure is that any information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station shall be reduced to writing by him or under his direction. so obviously the officer incharge (P.W.16) must have received information relating to the commission of cognizable offence. i.e., about the occurrence of murder of Uchit Singh and Arbind Ktlmar. so obviously the officer incharge (P.W.16) must have received information relating to the commission of cognizable offence. i.e., about the occurrence of murder of Uchit Singh and Arbind Ktlmar. The Officer (P.W.16) without Investigating recording the statement of any person of village Anjunar returned back to Chandradip police out• post where he met Indradeo Singh (P.W.10 and at 1 P.M. he got the statement of Indradeo Singh (P.W. 10) recorded by Baimiki Sharma (P.W. 15) which has been marked as Ext. 1, and is the basis of the First Information Report (Ext. 7). 14. From the above statements of facts it is obvious that by the time this Ext.1 came in existence the police investigation as & defined under the Code of Criminal Procedure, had already commenced and thus clearly the statement of P.W. 10 [Ext. 1) was recorded in course of police investigation. Ext. l is, therefore, clearly in violation of section 162 Cr. P. C., since sub section (1) of the aforesaid section lays down that no statement made by any person to a police officer in the course of an investigation under Chapter XII of the Code of Criminal Procedure shall, if reduced to writing, be signed by the person making it, nor shall any such statement of any record thereof whether in a police diary or otherwise, or any part of such statement or record be used for any purpose, save as provided in the proviso to section 162 Cr. P.C. which lays down that such statement may be used only for the purpose of contradicting a witness in cross-examination by the defence and by the prosecution for contradicting such witness with the permission of the court. Thus as laid down under section 162 Cr. P.C, any statement recorded in course of police investigation shall be used only for a limited purpose i.e. only for the purpose of contradicting a witness and section 162 Cr. P. C. clearly excludes the First Information Report recorded under section 154 Cr.P.C, In the circumstances mentioned above the statement of the informant Indradeo Singh (P.W. 10) as contained in Ext. 1 cannot be treated as an information as contemplated under section 154 Cr. P. C and it is to be held that the aforesaid statement was recorded in course of police Investigation and hence the same can be used for the limited purpose as indicated above. 1 cannot be treated as an information as contemplated under section 154 Cr. P. C and it is to be held that the aforesaid statement was recorded in course of police Investigation and hence the same can be used for the limited purpose as indicated above. In this connection a point also arises for consideration whether the statement as contained in Ext. 1 can be treated even as a statement recorded under section 161 Cr. P. C. According to section 161 Cr. P. C. a Police Officer may examine orally any person supposed to be acquainted with the facts and circumstances of the case and he 'may reduce into writing' any statement made to him in the course of an examination under section 161 Cr.P.C. This section does not lay down that such statement should be signed by the maker. On the other hand section 162 Cr. P. C. prohibits signing of any statement made by any' person to a police officer in the course of an investigation, So in this view of the legal position it appears that the statement of Indradeo Singh, the informant of the present case, contained in Ext. l, cannot be even treated as a statement recorded under section 162 Cr. P. C. since it is in violation of section 162 Cr. P.C. 15. But so far as the substantive evidence given by P.W. 10 in court is concerned it will not be inadmissible on 'account of the aforesaid legal law but will be affected only to the extent that it will be deemed that P.W. 10 has made the statement for the first time in Court. The prosecution is looser, in as much as the evidence of P W.10 recoded by the trial court could have been corroborated by the earlier statement made by him as contained in Ext. 1 but it can not be done so since the same as already held is hit by section 162 Cr P C. For the reasons stated above the contention raised by the learned counsel appearing for the appellants in this regard must prevail. 16. The next point which has been canvassed is that the conduct of the Investigating Officer (P.W. 16), who has been rewarded Rs. 500/- by the Department' concerned, is not fair in conducting the investigation of this case. 16. The next point which has been canvassed is that the conduct of the Investigating Officer (P.W. 16), who has been rewarded Rs. 500/- by the Department' concerned, is not fair in conducting the investigation of this case. We are constrained to agree with the submission made on behalf of the appellants for the reasons that P.W. 16 soon after the occurrence got information about some incident through Balmiki Sharma (P.W. 15), writer constable at Sikandara Police station and thereafter he (P.W.16) reached at Chandradip Police Outpost at 10.30 A.M. There does not appear to be any justification for this Officer (P.W.l6) in not finding' out any person to make statement with respect to the commission of a. cognizable offence, i.e. murder of two person, namely, Uchit Singh end Arbind Kumar. He could have recorded the Fard beyan on the statement of any person, either an eye witness or not, and could have taken steps for the institution of the present case earliest. The possibility appears to be that at the earliest opportunity if this officer (P.W. 16) would have taken steps for taking down the statement of any person either of village Anjunar or village Chandradip, he could have got the correct information of the incident since the prosecution would not have got an opportunity to deliberate and concoct the case. Besides the explanation given by P.W. 16 is that he did not record the statement of P.W. 6 Nawal Singh, P.W.7 Sunil Singh and P.W. 8 Karu Singh since they were not in a position to make any statement. P.W. 16 does not say specifically in his evidence that either the aforesaid witnesses were unconscious or they were not in a position to speak due to injuries. This witness (P.W. 16) cannot be exonerated from the responsibility that he did not Act, fairly. We say so with reference to the injuries found on the person of the aforesaid three injured persons. All the three injured persons, namely, P.W. 6, 7 & 8 were examined by P.W. 13 Dr. Dharamraj Ray. It appears from his evidence that one lacerated injury on the right side of the fore-head 1¼ X ¼ skin deep was found on the person of Karu Singh (P.W. 8), but according to this doctor this injury was simple one. It would also appear that the injury was only skin deep. Dharamraj Ray. It appears from his evidence that one lacerated injury on the right side of the fore-head 1¼ X ¼ skin deep was found on the person of Karu Singh (P.W. 8), but according to this doctor this injury was simple one. It would also appear that the injury was only skin deep. Such an injury obviously can not cause unconsciousness and also will not make injured unable to speak, likewise on the person of P.W. 6 Nawal Singh, one pellet injury was found on the right forearm. It is needless to state that the aforesaid injury on the forearm of the nature, as described by the doctor (P.W. 13) neither can cause unconsciousness nor it can make injured unable to unable to speak. The another injured namely, Sunil Kumar Singh (P.W. 7) had also one injury on his left thigh caused by fire-arm. This injury also does not indicate that the injured will either be unconscious or will be unable to speak. So the explanation given by P.W. 16. the Investigating Officer, that the aforesaid three injured witnesses, namely, P.W. 7 & 8 were not in a position to make statement appears to he a lame excuse and merely for the shake giving time to the prosecution to deliberate and think over. The aforesaid conduct of the Investigating Officer is depreciable. Thus the conduct of the Investigating Officer (P.W. 16) does not appear to be quite fair. In a case in which two murders has been committed and four persons had been injured, the Investigating Officer should have acted with promptness in recording the fardbeyan but unfortunately he did otherwise. The Station diary entry (Ext. 6) also indicates that this P.W. 16 had reached Chandradip Police out post at 10.30 A. M. and he had met constable no. 488 Shri Krishna Singh (P.W. 16) could have easily drawn up Fardbeyan (Ext. 1) on the statement of constable no. 488 Shri Krishna Singh since he was there at Chandradip Police out-post, which is in Chandradip market itself where the occurrence is said to have taken place and if the statement would have been recorded by P.W.16 it would have disclosed the commission or cognizable offence which could have been treated as the basis for the First Information Report. 488 Shri Krishna Singh since he was there at Chandradip Police out-post, which is in Chandradip market itself where the occurrence is said to have taken place and if the statement would have been recorded by P.W.16 it would have disclosed the commission or cognizable offence which could have been treated as the basis for the First Information Report. The conduct of P.W. 10, the Investigating Officer, in taking steps on the aforesaid line also speaks much against his fair investigation. In these circumstance we have to accept this submission as well of the learned counsel appearing for the appellants. 17. The another aspect of the matter concerned with the prompt recording of the Fardbeyan is that there does not appear to be any plausible explanation for P.W. 10 Indradeo Singh, the informant of the present case, in not contacting P.W. 16 the Investigating Officer, who had reached at that out post at 10.30 A. M. before 1 P. M. he is said to have made the statement which has been taken down as the Fardbeyan. According to his own statement, P.W. 10 was assaulted in his shop. The shop of P.W.10 is just infront of Chandradip Police outpost as it would appear from his evidence, but surprisingly when the Officer-in-charge (P.W. 16) reaches Chandradip Police out post at 10.30 A.M. with armed force, the informant Indradeo Singh (P.W.10) kept himself concealed in the shop till 1 P.M. and at 1 P.M. he was found at Chandradip Police out post. This clearly gives an impression that P.W. 10 made delay only to gain time so that a cooked up prosecution story may be put forward before the police officer, otherwise there does not appear any justification for this witness (P.W. 10) for not contacting (P.W. 16) the Investigating Officer, at the earliest. 18. The next point which has been urged before us by the learned counsel for the appellants is that the prosecution witnesses are not at all reliable and they have not come out with the true version of the occurrence. Two persons, namely, Uchit Singh and Arbind Kumar were killed and four persons received injuries cannot be disputed in view of the medical evidence as also in view of the suggestion given to P.W.1 Jalo Singh by the defence that there was some firing and brick batting in which the aforesaid persons had received injuries. Two persons, namely, Uchit Singh and Arbind Kumar were killed and four persons received injuries cannot be disputed in view of the medical evidence as also in view of the suggestion given to P.W.1 Jalo Singh by the defence that there was some firing and brick batting in which the aforesaid persons had received injuries. Now for the purpose of reaching at the truth it is necessary to examine whether the witnessed are reliable or not. 19. So far as P.W. 10 Indradeo Singh who is said to be the informant of the present case is concerned it would appear from his evidence that he had got a very bad antecedent from his cross-examination it would appear that this witness along with his brother Faudi Singh was accused in a case under section 302 of the Code. It is agreed by both the parties that he was acquitted in appeal. It was further suggested to this witness in cross-examination by the defence that he was an accused in a case under section 396 of the Code along with his brother Faudi Singh, but he denied this suggestion although P.W. 16. the Investigation Officer, admits this fact in his evidence by stating that this witness (P.W. 10) along with his brother was accused in a case under section 396 of the code in which charge-sheet was submitted From the suggestion given to this witness it would appeal that he was accused in several cases which he had denied but from the evidence of P.W. 16 Sikandara P.S. case no. 2 date 2.12.l979 under Sections 147, 148, 324 and 379 of the Code, Sikandara P.S. case no. 11 dated 31-1-1972 under section 148, 149, 323, 325 and 307 of the Indian Penal Code and Sikandara P.S. case no. 5 dated 13-3-1975 under Section 396 of the Code along with his brother Faudi Singh in which charge-sheet have been submitted. This clearly shows that P.W. 10, the informant of the present case is not a man of clean antecedent, It is also surprising that as to why P.W. 10 Indradeo Singh was selected by the Investigating Officer (P.W. 16) for being an informant of this case when there were other persons available to say about the incident. As stated earlier in this case five persons have received injuries including P.W. 10 Indradeo Singh. As stated earlier in this case five persons have received injuries including P.W. 10 Indradeo Singh. The other four person were Ram Sharan Singh (P.W. 4), Nawal Kishore Singh (P.W. 6), Sunil Kumar Singh (P.W. 7) and Karu Singh (P.W.8) but all the other injured, except P.W. 10, do not say anything about the murder of Uchit Singh and Arbind Kumar. So far as P.W. 4 Ram Sharan Singh is concerned, his evidence is more ridiculous in view of the fact that he has stated that on the alleged date of occurrence he was in his shop in Chandradip market and at about quarter to nine in the morning of 7-5-1982 after hearing hulla he came out of his shop and found injuries on the head of Indradeo Singh (P.W. 10) who was running on the road. Appellants Aslam Mian, Basir Mian, Jumman Mian, Monajir Mian, Nanhu Mian, Alam Mian and Mumtaj Mian were also seen by him. They were armed with lathies. He asked as to what was the matter, whereupon appellant Aslam Mian ordered to assault him since he was the leader. Thereafter the accused persons surrounded and assaulted him, as a result of which he fell down. Appellant Aslam Mian said to finish him. At that very time some of the accused persons uttered that he (P.W. 4) was already finished. He thereafter became unconscious. When the accused persons went away from that place he went to Chandradip Police Out. post, where he met munshiji, namely, P.W. 15 Balmiki Sharma who reached him at Sikandara Hospital where he was examined. This witness does not say that he became unconscious after reaching at Chandradip Police outpost, but P.W. 15 Balmiki Sharma made a contradictory statement in this connection and has stated that Ram Saran Singh (P.W.4) came to the police out post while being chased by some persons and fell down and became unconscious. Thereafter he took P.W. 4 Ram saran Singh to Sikandara on a truck. In the station Diary Entry no. 64 dated 7-5-1982 as well which is included in Ext, 6, this fact is stated. P.W. 15 appears to have made this witness unconscious so that his statement cannot be recorded. The injuries of this witness was examined by P.W. 14 Dr. Arbind Kumar. In the station Diary Entry no. 64 dated 7-5-1982 as well which is included in Ext, 6, this fact is stated. P.W. 15 appears to have made this witness unconscious so that his statement cannot be recorded. The injuries of this witness was examined by P.W. 14 Dr. Arbind Kumar. No doubt he found six injuries, out of which three were on the head, but all the injuries were simple in nature. P.W. 14 Dr. Arbind Kumar, has stated that the injured (P.W. 4) might have been semi unconscious because of the injuries on the head but he was conscious when he was examined by him. It is curious that this witness (P.W. 4) became unconscious at the scene of assault itself and thereafter he regains his senses and comes to police out post where he again becomes unconscious. As soon as he reaches at the police out post again becomes conscious when he is taken to the doctor. From these circumstances it can be inferred that only with a view to avoid recording of the statement of this witness (P.W. 4) this story of unconsciousness of this witness (P.W. 4) at Chandradip police out post appears to have been set up what has been stated above is about Ram Sharan Singh (P.W. 4) while testing the reliability of the evidence of the prosecution witnesses we find that none of the injured witnesses, except P.W. 10 Indradeo Singh, speak about the two murders. This appears to be mysterious. But from the circumstances it appears that all the four injured persons namely, P.W. 4 Ram Sharan Singh, about whom we have already stated above P.W. 6 Nawal Kishore Singh, P.W.7 Sunil Kumar Singh and P.W. 8 Karu Singh do not say a word about the murder of two deceased. The reasons behind this appears to be that as soon as they received injuries it became necessary for them to get medical aid as quickly as possible. So they had to go forward medical aid, but till they reached the doctor they were not sure as to what version of the prosecution case will be put forward, hence all these witnesses speak only about their own assault and none of them either gave their statement before P.W. 15 at Chandradip police out post or at Sikandara police Station. P.W. 10 Indradeo Singh, the informant of the present case, who had opportunity earlier to face several case, remained concealed in his shop for being the informant of the case. In these circumstances as a matter of fact the injured witnesses would have been the most competent and probable witnesses to say about the whole incident including the murder of two persons but they were restrained from disclosing anything about the incident leading to the murder of Uchit Singh and Arbind Kumar. Therefore, obviously the testimony of these witnesses is not fit to be acted upon. 20. So far as the murder of two deceased, namely, Uchit Singh and Arbind Kumar is concerned, P.W.1 Jalo Singh, P.W. 2 Awadh Singh, P.W. 3 Anup Singh, P.W. 9 Askand Kumar Sao and P.W. 10 Indradeo Singh, the informant of the present case, about whom we have said earlier are the witnesses of the murder, So far as P.W.9 Askant Kumar Sao is concerned, his name does not find place in Ext. 1 but since we have not taken that Ext. 1 as the Fardbeyan we have to ignore this aspect of the matter, but the glaring fact remains that P.W. 1 Jalo singh, P.W. 2 Awadh Singh and P.W. 3 Anup Singh are the residents of the same village, i.e. village Anjunar P.W.10, the Investigating Officer, had visited village Anjunar when he saw the dead body of Arbind Kumar lying near the tube well of Gita Singh earlier than the recording of the so called Fardbeyan (Ext.1). From the evidence of P.W. 16, the Investigating Officer, it would appear that at the first opportunity when P.W. 16 visited village Anjunar no body had come forward before him to say about the murder of two deceased persons. There is absolutely no explanation as to why these witnesses, namely P.W.1 Jalo singh, P.W. 2 Awadh Singh and P.W. 3 Anup Singh, who are the residents of that very village did not turn up before the Investigating Officer (P.W. 16) to say about the incident with respect to the murder of the two deceased persons. On this ground alone their testimony is subject to great doubt, so far as P.W, 9 Askand Kumar Sao is concerned, his name as an eye witness has come at a very late stage. On this ground alone their testimony is subject to great doubt, so far as P.W, 9 Askand Kumar Sao is concerned, his name as an eye witness has come at a very late stage. P.W 9 Askand Kumar Sao himself admits in his evidence that he was examined by the Investigating Officer on 10-5-1982 after three days of the occurrence, Hence no reliance can be placed on the testimony of this witness. 21. It has also been argued on behalf of the appellants that the prosecution version of the occurrence is not true which stands falsified from the materials on the record brought by the prosecution itself and further that the genesis of occurrence itself is doubtful. In this regard our attention has been drawn to the statement of P.W. 15 Balmiki Sharma, writer constable, and Station Diary Entry (Ext. 6) of Chandradip Police out post. P.W. 15 has stated in his evidence that on 7-5-1982 he was at the Police out post. He heard hulla on the road. He came out of his office and came on the road and saw that altercation was going on between the villagers of village Chandradip and village Anjunar. Hot exchanges of words were going on between them. He tried to intervene, where upon one of the persons from village Chandradip uttered that he (P.W. 15) should be assaulted. Another man of village Chandradip said that he should not be assaulted because it will create havoc. He also stated that brick battings were going on, This fact is corroborated by Ext 6 i.e. Station Diary Entry no. 63, wherein it has been stated that P.W.15 suddenly saw brick batting going on just by the side of Police out post between the villagers of two villages namely Chandrapdip and Anjunar. He tried to pacify them, but did not succeed. Thus from the above statement of P.W. 15 and the Station Diary which was recorded at the earliest opportunity al early a 8.45 A. M. on 7-5-1982 which gives a different picture of the manner of occurrence, it is clear that the prosecution has completely suppressed the factum of brick batting from any side, whereas it is fully established from the evidence of P.W.15 and the Station Diary Entry referred to above. Besides, the genesis of occurrence as put forward by the prosecution does not appear to be probable and acceptable. Besides, the genesis of occurrence as put forward by the prosecution does not appear to be probable and acceptable. According to the evidence of P.W. 10 Indradeo Singh, the informant of the present case, which gives the start to the prosecution story, of there was some altercation between P.W. 10 Indradeo Singh and appellant Aslam Mian at 8.45 A.M. on that date regarding the price of 'Chohara'. In the meantime appellants Juman Mian and Basir Mian also came there and on the order of appellant Aslam Mian, appellant Juman Mian gave lathi blow on the head of P.W. 10 and according to the prosecution case thereafter the aforesaid accused persons went back and thereafter they came in a mob. This story does not appear to be believable in view of the fact that after assault on P.W. 10 Indradeo Singh by appellant Juman Mian, P.W. 10 Indradeo Singh will be the aggrieved person and in ordinary course it is expected that P.W. 10 Indradeo Singh will try to take revenge from the aforesaid accused persons who had taken part in assaulting him and were instrumental to it. So far as the people of village Chandradip are concerned in such circumstances they will not have any grievance since they had already taught a lesson to P.W. 10 Indradeo Singh by assaulting him and the story that they came in a mob armed with gun etc. and assaulted the spectators and others as alleged by the prosecution appears to be not convincing. 22. From the observations made by the learned trial court in its judgment in Paragraph 36 it would appear that the learned trial court was also not satisfied that the row over Chuhara was the genesis of the prosecution case, since he has observed that the row over Chuhara according to the prosecution or over the 'Kakaries' according to the accused seems to have created a tense situation. Thus according to the observations of the trial Court as well the incident connected with the selling of 'Kakaries' may be the genesis of the whole incident. If the genesis of the prosecution case becomes doubtful we have no way out but to hold that the prosecution has not been able to prove its case beyond reasonable doubt. Thus according to the observations of the trial Court as well the incident connected with the selling of 'Kakaries' may be the genesis of the whole incident. If the genesis of the prosecution case becomes doubtful we have no way out but to hold that the prosecution has not been able to prove its case beyond reasonable doubt. In these circumstances the appellants are entitled to get benefit of doubt and the aforesaid two criminal appeals are, therefore, allowed and the judgment and orders of conviction and sentence passed by the learned trial court against the appellants of both the appeals are hereby set aside. and they are acquitted of all the charges. 23. The appellants Nanhu Mian, Anjar Mian, Aslam Mian and Alam Mian who are in jail shall be set at liberty forthwith if not wanted in any other case. The other appellants shall be discharged from the liabilities of their bail bonds. Appeals allowed.