Judgment B. N. Sinha, J. 1. These appellants were tried in Sessions trial No.120 of 1988 by Additional Sessions Judge, Godda, on the charge of being members of unlawful assembly and committing murder of Saryu Mandal, theft in the house of the first informant, Arvind Mandal and voluntarily causing hurt to chandeshwari Sah and Gajju allegedly on 8th day of June, 1985 at village baksara, P. S. Poraiya Hat and they have been found guilty under Sections 302/149, I. P. C. and Sec.380/34, I. P, C. and sentenced to undergo rigorous imprisonment for life and two years under two counts respectively. Appellants-Bijal Yadav, Arun Yadav, Prakash alias Pragash Yadav, Hagalu khirhar and Pairu Khirhar have also been convicted under Sections 323/34 1. P. C. and sentenced to undergo rigorous imprisonment for three months. The sentences, however, are to run concurrently. 2. The case of the prosecution was initiated on the basis of the fardbeyan (Exhibit-2) recorded on the statement of Arvind Mandal (P. W.1)S. I. R. P. Sharma (P. W.11) on 8-6-1985 at 12 hours. 3. The case of the prosecution may be briefly stated. Devi Mandal, grant-father of the first informant (P. W. I) and Ganauri Mandal were full brothers. The first wife of Ganauri Mandal died issueless. Thereafter he took another wife who had a son named Bijal Yadav (the accused) from her first husband and bijal Yadav came with his mother, after her marriage with Ganauri Mandal. Ganauri Mandal has no issue even from his second wife and Bijal Yadav remained with him as son. Bijal Yadav had two sons-Nand Kishore Yadav (the accused) and Nawal Kishore Yadav (the accused ). Ganauri Mandal died in 1983 and his second wife also expired in the same year after his death. Thereafter the first informant asked Bijal Yadav (the accused) and his sons to give up the property of Ganauri Mandal as Kaku Mandal the father of the first informant happened to be the nearest heir of Ganauri mandal. For this reason Bijal Yadav and his supporters became inimical to the family of the first informant. Thereafter the first informant asked Bijal Yadav (the accused) and his sons to give up the property of Ganauri Mandal as Kaku Mandal the father of the first informant happened to be the nearest heir of Ganauri mandal. For this reason Bijal Yadav and his supporters became inimical to the family of the first informant. On the Wednesday, preceding the day of occurrence of the present case Bijal Yadav and his supporters had untied the bullock from the plough of the first informant and pounded his bullock and also carried awav the Juath and one maond paddy seedlings belonging to the first informant and assaulted the first informant for which the first informants brother Anil Mandal had instituted a complalnt case. This further enraised the accused persons. On 8-6-1985 at about 5.30 A. M. while the first informant was feeding his cattle near his eastern house situated close to a jack tree along with his brother Saryu Manual and Sunil Mandal and his father Raku Mandal and his villager Sudin Sah and others were also there and were gossiping. All on a sudden these accused persons along with ganesh Yadav, Doro Khirhar (both since dead) and four to five other unknown persons armed with Garasa, Farsa, Bhala, Tonga, Dagger, Lathi, Bomb and Pistol surrounded them and started hurling brick bats and stones shouting Maro-Maro. Accused Garju Yadav was exhorting his associates to kill them. Accused nand Kishore Yadav, Antlal Yadav and Nand Deo Mahto were armed with garasa, Bodhi Mahto and Futali Yadav were armed with Farsa, Horil Yadav and Digo Yadav were armed with Bhala, Jaikant Khirhar was armed with tanga, Ganesh (dead) was armed with Bomb and the remaining of the accused were armed with Lathi. The unknown persons were armed with Bomb, Pistol, dagger and Lathi. The first informant along with his brothers Saryu Mandal, sunil Mandal and their villager Sudin Sah out of fear fled into his house and bolted the door from inside, but the accused persons exploded the Bomb on the door of the house and started breaking open the door by hitting Tangi. In the mean time the accused Ganesh Yadav (since dead) threw two Bombs through a big hole in the wall of the said room which exploded. In the mean time the accused Ganesh Yadav (since dead) threw two Bombs through a big hole in the wall of the said room which exploded. Thereafter the first informant and other three who were inside the house get up on dharan of the house, came out of the house by tearing the thatch of its roof, jumped down from its roof and started to flee away. The accused persons started chasing them. Saryu Mandal (the deceased) fled away towards west and the remaining three fled awav to wards south. The accused succeeded in surrounding Saryu Mandal (the deceased ). Accused Nand Kishore Yadav and Bodhi Yadav assaulted him with Garasa and Farsa on his head. Accused antlal Yadav assaulted with Garasa on his right leg. As a result of which saryu Mandal (the deceased) fell down and thereafter Horil Yadav started assaulting him with Bhala. On this accused Nand Kishore Yadav said as to why they were assaulting on his leg and arms only and asked to chop off his neck and uttering these words he have a heavy blow by Garasa on the neck of saryu Mandal. Others assaulted him with Lathi and Bhala. After splashing for some time Saryu Mandal stayed there, west of the road in a Pradbani field in Egora Bandh of village Baksara. The first informant, his brother sunil Mandal (P. W.2) and his villagers Sudin Sah (P. W.5), Murli Sah (not examined) and Chandeshwari Sah (P. W.4) and others had tried to save Saryu mandal but the accused persons chased them and asked them that if they would come there they would be also finished. Thereafter they fled away towards their village. The accused persons also thereafter came back to the village and they entered into the house of the first informant and took away four bags of rice, two bags of Paddy some utensils, some silver ornaments, three sarees, all papers connecting lands and cases and Rs 600/- in cash all worth rs.4.000/- saying that they will fight the murder case by selling those articles. Thereupon Dhrupad Sah (P. W.3) and Narsing Mandal (not examined)protested by saying as two why they were doing this high-handedness. Thereupon the accused persons saying that they were taking side of the first informant entered into the house of Dhrupad Sah and took away the utensils from this house and assaulted Chandeshwari Sah son of Dhrupad Sah. Thereupon Dhrupad Sah (P. W.3) and Narsing Mandal (not examined)protested by saying as two why they were doing this high-handedness. Thereupon the accused persons saying that they were taking side of the first informant entered into the house of Dhrupad Sah and took away the utensils from this house and assaulted Chandeshwari Sah son of Dhrupad Sah. Thereafter accused persons went away towards north saying that if anybody would attempt to go out of the house, he would be done away. Hence, nobody could go to lodge information about the incident out of fear and the information regarding the occurrence could be given after the arrival of the s. I. Ramautar Prasad Sharma (P. W.11) in the village. Ramautar Pd. Sharma recorded Fardbeyan (Exhibit-2) on the basis of ths statement of arbind Mandal (P. W.1 ). 4. On the basis of fardbeyan (Exhibit-2) formal F. I. R. (Exhibit-1) was drawn. After usual investigation the police submitted charge-sheet in the case against these accused. Thereafter the cognizance of the case was taken, the case was committed to the court of Session and the trial proceeded. 5. At the trial the accused pleaded not guilty to the charges and clalmed to be tried. Their defence was that on the alleged date of occurrence at about 8 A. M. the first informant along with others had gone to loot the house of accused Bijal Yadav which was protested by the accused persons and the villagers and there was Mar-Pit in course thereof Saryu (the deceased)had sustained injuries and died there and Chandeshwari Sah (P. W.4) also sustained injuries and that the prosecution party placed the dead-body of saryu (the deceased) on the Bandh and informed the S. I. and these accused persons have been implicated falsely due to enmity. 6. The prosecution examined altogether eleven witnesses to prove its case. Oat of them P. W.1 Arbind Mandal, P. W.2 Sunil Mandal and P. W.5 sudin Sah deposed as eye-witness of the entire occurrence. P. W.6 Raku mandal who happens to be the father of the informant is a witness on the part of the occurrence which is alleged to have taken place in the Bathan of the first informant. P. W.4 Chandeshwari Sah is a witness only on the point of theft and assault on him. P. W.3 Dhrupad Sah was tendered by the prosecution. P. W.4 Chandeshwari Sah is a witness only on the point of theft and assault on him. P. W.3 Dhrupad Sah was tendered by the prosecution. P. W.7 Siraj Khan and P. W.10 Sunil Kumar Jha are formal witnesses. P. W.8 Dr. Raghvendra Prasad Chaudhary had held post-mortem examination on the dead-body of the deceased. P. W.9 Dr. Bindeshwar panjiar had examined the injuries on the person of Chandeshwari Sah (P. W.4 ). P. W.11 S. I. Ramautar Prasad Sharma is the Investigating Officer of the case. 7. Learned trial court after taking into consideration the evidences produced, found that the prosecution has proved its case beyond all reasonable doubts. But it came to the conclusion that the charge under Sections 323/34, I. P. C. is established only against accused Bijal Yadav, Arun Yadav, pargesh Yadav, Haglu Khirhar and Pairu Khirhar and be accordingly acquitted the remaining accused of that charge, 8. The learned counsel for the appellants has not challenged that the deceased Saryu Mandal died as a result of the injuries found on the person of the deceased which is apparent from the facts stated above and this is also proved on the evidence of P. Ws.8 and 11. The evidence of P. W.11 is that he found the dead-body of Saryu Mandal (the decease) lying to the west of the road at the distance of about 70 steps from Egora Bandh and he held inquest over the dead-body of the deceased and in presence of the witnesses prepared inquest report (Exhibit-6) in respect thereof. The evidence of P. W.8 is that on 9-6-1985 at 10.15 AM. he held post-mortem on the dead-bcdy of Saryu Mandal (the deceased) and found the following ante-mortem injuries : i. Incised wound cutting whole of the right knee just above the ankle joint leaving a part of skin attached. ii. Incised wound on the top of head with fracture of skull. Size 5 "x 1/2"x muscle deep cutting bone. iii. Incised wound on the right side of neck. Size 4 "x1/2 "x muscle deep. iv. Incised wound on the upper and mideal part of the right middle arm. Size 3" x 1" X 2". V/s. Burn injuries on the left leg extending from upper part of the thigh to the lower part of the leg. vi. Burn injury over the chest in the size of 6"x4". vii. Size 4 "x1/2 "x muscle deep. iv. Incised wound on the upper and mideal part of the right middle arm. Size 3" x 1" X 2". V/s. Burn injuries on the left leg extending from upper part of the thigh to the lower part of the leg. vi. Burn injury over the chest in the size of 6"x4". vii. Pilling of skin here and there all over the body due to burn. On dissection the doctor found bis skull fractured, meninges torn and haemotoma on the undersurface of the scalp on the top of the head. According to him the death of the deceased has taken place due to shock and haemorrhage leading to cardo-respiratory failure ; and injury Nos. (ii) and (iii)in itself were sufficient to cause death in normal cuurse. According to him the time elapsed since death was within 24 hours from the time of postmortem examination. P. M. report is Exhibit-3. 9. On these evidence it is fully established that the death of the deceased was homicidal. 10. But the learned counsel for the appellants has sumitted that on the evidence of the P. Ws. , it is not established beyond doubt that the deceased had sustained those injuries in the manner and at the time and place as alleged by the prosecution. Elaborating his argument, learned counsel for the appellants has submitted that PWs.1, 2, 3, 4, 5 and 6 are all interested and partisan witnesses who have been inmical to the accused and their evidence is not being supported by the findings of P. W.8, the doctor regarding the injuries found on the person of the deceased and the evidence of these P. Ws. are contradictory to each other. Hence, no reliance can be placed on their evidence. 11. P. W.1 Arvind and P. W.2 Sunil are sons of P. W.6 Raku Mandal and are full brother of the deceased. It appears from the evidence of P. W.1 that the accused persons had demolished the house of Dhrupad (P. W.3)standing on a pasture land about three to four years before the occurrence and that the accused Nand Kishore bad filed a criminal case in 1983 on the allegation that bis cycle has been snatchtd away by the accused in that case p. W.1 Arvind, P. W.2 Sunil, P. W.6 Raku, P. W.4 Cbandeshwari and p. W.5 Sudin were accused. Thus, P. Ws. Thus, P. Ws. Sudin and Chandeshwari have been accused along with the first informant Arvind and his brother Sunil mandal and his father Raku Maudal in the criminal case by accused Nand kishore. Thus, there has been enmity between these P. Ws. and the accused from before the occurrence. Of course, on this ground alone "their evidence cannot be disbelieved but their evidence require close and careful scrutiny. 12. P. W.1 the first informant in his evidence has slated the facts narrated above while stating the prosecution case. But in his evidence he has stated that the accused Nand Kishore assaulted with Garasa on the head of Saryu (the deceased), though in his fardbeyun he stated that both accused Nand Kishore and Bodhi Mahto assaulted Saryu Mandal (the deceased) on his head with Garasa and Farsa. But he has dropped the name of the accused Bodhi Mahto as assailant of the deceased on his head in his evidence in Court. P. W.2 in his evidence has stated that accused Bodhi assaulted Saryu Mandal (the deceased) on his head with Farsa and so is the statement of P. W.5. Thus, there is contradiction between the evidence of p. W.1 on the one hand and P. Ws.2 and 5 on the other hand as to who assaulted Saryu Mandal (the deceased) on his head. The evidence of P. Ws.1, 2 and 5 is that after Saryu Mandal fell down on the ground on receiving injuries, accused Horil assaulted with Mala. The evidence of P. W.1 is that bhala was inflicted by accused Horil on his right shoulder whereas according to P. Ws.2 and 5 on his right-arm. But according to the doctor, P W.8 the injuries found on the person of the deceased could be caused by Garasa, farsa and Bomb. He has not stated that any of the injuries found on the person of the deceased could be caused by Bhala also. P. Ws.1 and 2 have stated in their evidence that the remaining accused were assaulting the deceased with Lathi, and so is the case of the prosecution in the Fardbeyan. But P. W.8 did not find any injury on the peison of the deceased which could be caused by Lathi or Bhala. P. Ws.1 and 2 have stated in their evidence that the remaining accused were assaulting the deceased with Lathi, and so is the case of the prosecution in the Fardbeyan. But P. W.8 did not find any injury on the peison of the deceased which could be caused by Lathi or Bhala. Moreover, according to the evidence of p. W, 8 some of the injuries on the person of the deceased had been caused by Bomb, but, P. W.1 has not staled that the deceased also sustained Bomb injuries ; rather positive evidence of i. Ws.2 and 5 is that the deceased did not sustain any injury by Bomb. 13. Thus, the evidence of P. Ws.1, 2 and 5 as to how Saryu, the deceased sustained injuries on bis person is not being corroborated by the findings of the doctor, P. W.8. Thus, there appears substance in the submission made by the learned counsel for the appellants that either none of those P. Ws. had actually seen as to how Saryu, the deceased, had sustained these injuries on his person or they are suppressing the truth regarding the manner in which Saryu, the deceased sustained those injuries. 14. So far the commission of theft in the house of the first informant and P. W.4 Chandfshwari Sah is concerned, that also is far from being satisfactory. There is evidence of P. Ws.1, 2, 4, 5 and 6 on that point. So far the commission of theft in the house of the first informant is concerned, that is vague. Neither the first informant (P. W 1) nor P. W.2 nor his father P. W.6 has in their evidence specifically stated as to what were the articles which were taken away by the accused persons. So far the theft in the house of P. W.4 Chandeshwari Sah is concerned, his evidence is that he came to learn regarding the theft committed in his house by the accused from the female members of his house, but none of those females has been examined in this case. 15. The further evidence of P. W.4 is that he was assaulted by accused bijel. Arun, Pargesh, Haglu and Pairu by Lathi. 15. The further evidence of P. W.4 is that he was assaulted by accused bijel. Arun, Pargesh, Haglu and Pairu by Lathi. P. W.9 has stated in-his evidence that on 9-6-198s at 7.15 A. M. white he was posted at Poraiya Hat he examined this Chandeshwari Sah (P. W.4) and found certain injuries on his pereon, which could be caused by hard blunt substance as Lathi. But the evidence of P. W.4 is that he was examined by the doctor at Bhagalpur. It does not appear from his evidence that he was ever examined by P. W.9. Hence, though he is an injured his evidence does not inspire confidence. 16. Moreover, I ought to have mentioned that P. Ws.4 and 5 happen to be the sons of P. W.3 Dhrupad Sah. Thus, the witnesses who have come forward belong to two families only. P. Ws.1, 2 and 6 belong to one family, i. e. , the family of the deceased and P. Ws.3, 4 and 5 belong to one family and both these families have been inimical to the accused from before the occurrence. On careful and cautious scrutiny of their evidence, they do not inspire confidence and they do not appear to be reliable witnesses and on their evidence the case of the prosecution is not established beyond reasonable doubt. 17. It has been submitted by the learned counsel for the State that the case of the prosecution is fully supported by the evidence of P. W.11, the investigating Officer, who found blood near the dead-body of the deceased and also found the remnants of the bomb explosion at the alleged place of occurrence. But, it has been admitted by P. W.11, the Investigating Officer that he did not send those remnants of the bomb explosion to the ballistic expert and the blood stained earth to the chemical examiner for examination. Under these circumstances, it cannot be said whether there were actually the remnants of bomb explosion and the earth containing blood like stains were really blood stained. 18. Lastly, it has been submitted by the learned counsel for the appellants that the charge was amended in the trial and the charge under Section 302 read with 149, I. P. C. was framed on 5-9-1988 after the examination of the accused under Sec.313 of the Code and the evidence of the D. Ws. 18. Lastly, it has been submitted by the learned counsel for the appellants that the charge was amended in the trial and the charge under Section 302 read with 149, I. P. C. was framed on 5-9-1988 after the examination of the accused under Sec.313 of the Code and the evidence of the D. Ws. in the trial, but no opportunity was given to these accused to further cross-examine the P. Ws. already examined, and it has been incorrectly mentioned by the court-below that the defence refused to cross-examine any of the p. Ws after the amendment of the charge and this has vitiated the trial and the accused persons are entitled for acquittal on this ground alone. It appears from the order dated 5-9-1988 the trial was adjourned to 25-11-1988 mentioning that if the defence desired to cross-examine any of the P. Ws. already examined they may file a list mentioning their names. The order dated 25-11-1988 indicates that the defence declined to further cross-examine any of the P. Ws. and the statements of the accused under Sec.313 of the code were again taken on that day. But it appears from the evidence of p. Ws.1, 2, 5 and 11 that they were further cross-examined on 7-9-1988 by the defence after amendment of the charge, but the order sheet of the trial court does not indicate that the trial was ever fixed for 7-9-1988, Moreover, the date mentioned below the initial of the Presiding Officer indicates that there is interpolation in the date so far the figure indicating the month is concerned. This is really very sad and serious. This creates doubt if the trial was conducted properly and in accordance with law. As it does not appear from the order sheet that the defence ever got opportunity of further cross-examining the P. Ws. after the amendment of the charge, the point being taken on behalf of the accused has to be accepted. For this reason also the judgment of the court-below cannot be sustained. 19. The Four D. Ws. were examined on behalf of the accused. D. W.1 dr. Uchit Lal Mandal clalms to have examined the injuries on the person of Garju Mahton, accused on 6-6-1985 at 4 A. M D. W.2 Baiju Yadav has proved the fradbeyan (Exhibit-5) recorded on the statement of accused Garju mahton on 10-6-1985. 19. The Four D. Ws. were examined on behalf of the accused. D. W.1 dr. Uchit Lal Mandal clalms to have examined the injuries on the person of Garju Mahton, accused on 6-6-1985 at 4 A. M D. W.2 Baiju Yadav has proved the fradbeyan (Exhibit-5) recorded on the statement of accused Garju mahton on 10-6-1985. D. W 3 Bhubneshwar Prasad Sah has proved the deed of adoption (Exhibit-B) executed by an Gonal Mandal and his wife samudri Devi in favour of the accused Nand Kishore. D. W.4 Din Bandhu mishra has proved formal F. I. R. (Exhibit-C) drawn on the basis of fardbeyan of accused Garju. 20. Learned counsel for the appellants has submitted that as the case of the prosecution is not established en the evidence produced by the prosecution, the evidence of these D. Ws. and the documents proved by him need not be looked into. The evidence of D. Ws.1, 2 and 4 and Exhibit-Sand exhibit-C indicate that accused Garju had filed a case against Anil Yadav son of P. W.6 Raku Yadav and P. W.4 Chandeshwari Sah for an occurrence said to have taken place on 6-6-1985. Thus, it shows the enmity between the accused Garju Mahto on the one hand and the family of the first informant (P. W.1) and P. W.4 Chandeshwari Sah on the other hand. 21. The evidence of D. W.3 indicates that the accused Nand Kishore had been adopted by Gonai Mandal and his wife Samudri Devi as their son. Learned counsel for the appellants has not been able to show as to what is the relevancy of this deed of adoption (Exhibit-B) as that has been executed by one Gonai Mandal. 22. On consideration of the facts and circumstances of the case and the evidence produced, I find and hold that the prosecution has failed to prove its case beyond reasonable doubt and these accused appellants are entitled to benefit of doubt. 23. In the result, the appeal is allowed. The conviction and sentence passed by the trial court are hereby set aside. It appears that accused-appellant No.2, Nand Kishore Yadav is still in custody. He is directed to be set at liberty forthwith, if not required in any other case. The remaining accused-appellants stand discharged of the liabilities of their bail bonds. Appeal allowed.