Judgment V. G. PALSHIKAR, J. ( 1 ) THIS appeal is directed against the judgment dated 6th April 1990 passed by the Addi. District Sessions Judge, Nagaur, in Sessions Case No. 43/87. Having found the accused appellant guilty the learned Judge proceeded to convict the appellant under sec. 302 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for life and a fine of Rs. 100/ -. Other eleven accused persons were acquitted by the learned Judge of the charges under Secs. 148, 302/149 and 323/149 of the Indian Penal Code. Acquittal is not questioned by the prosecution. ( 2 ) FACTS necessary for proper adjudication of this appeal stated in brief are that on 6th April 1987 villagers of village Satika in Nagaur Taluk and District Nagaur went to the local festival (Mela ). Villagers (approximately 800 to 1,000) had gethered for that Mela. It is alleged that in the morning at about 10 0 clock one Megha Ram came near the camel cart or one Bakhtaram after worshipping the goddess from the temple. After sometime, Megha Ram started to return when several persons named, assaulted Mega Ram severely injuring him. When scors of others from the Mela gathered on the spot, the assailants ran away before police could arrive on the scene. Police recorded statement of some of the persons present and First Information Report was recorded at the instance of one of them. Due investigation was, thereafter, carried out and 12 persons, including the present appellant were prosecuted under Secs. 148, 149, 302/149 and 323/149 of the Indian Penal Code for causing murder of Megha Ram and causing hurt to Megha Ram. ( 3 ) THE prosecution examined 13 witnesses to prove its case and 5 witnesses were examined on behalf of the defence. On appreciation of the entire oral and documentary evidence available in the case, the learned Addi. District and Sessions Judge, Nagaur, found only Hema Ram guilty of the offence under Sec. 302 of the Indian Penal Code and he proceeded to acquit all the eleven others of all the charges framed against them. The learned Judge found no credible evidence against any of the other accused and he acquitted all of them. It is the conviction of the accused Hema Ram which is now questioned before us in this appeal. The learned Judge found no credible evidence against any of the other accused and he acquitted all of them. It is the conviction of the accused Hema Ram which is now questioned before us in this appeal. ( 4 ) BEFORE appreciating the several submissions made on behalf of the accused, it would be just and proper to again scrutinise the evidence on record on the basis of which the impugned judgment was delivered by the learned Judge. Of the 13 prosecution witnesses only 2 are eye-witnesses to the incident and rest are panch witnesses, police-witnesses and doctor etc. ( 5 ) PW 12 in Dr. Arjun Ram Kala, who conducted the post-mortem and deposed that death was caused due to the injuries. He opined that injury No. 1 was sufficient in the ordinary course of nature to cause death. PW 2 is the Compounder of the rural hospital who deposed that the doctor was not available at the rural hospital. PW 3 is Shankar Singh, a police Constable who carried four packets duly sealed to the Forensic Science Laboratory, Jaipur. ( 6 ) PW 4 Bakhtaram is the first eye-witness. He has extensively deposed of the entire happenings of that day. He has deposed the names of all the 12 accused and he has deposed the manner in which these accused persons allegedly assaulted deceased Megha Ram. He has averred in his deposition, after naming the 12 accused persons that these 12 persons came in camel carts and all of them were armed and they encircled Megha Ram with a view to thrash him out. He then states that Hema Ram and Sana Ram had axe and other accused had sticks. When accused persons armed with sticks started following Megha Ram the witness shouted Megha Ram your enemies are following you to beat you. On hearing this, he said that Megha Ram turned down and started running. But the accused encircled him. They started beating him. For quite some time Megha Ram defended himself with his own stick. When the accused persons were so assaulting the victim, Hema Ram hit Megha Ram with the axe on the head due to which he fell on the ground on which the witness and one Bhanwaru shouted that Megha is killed. On this shouting several people in the fair, along with police constable, gathered there. When the accused persons were so assaulting the victim, Hema Ram hit Megha Ram with the axe on the head due to which he fell on the ground on which the witness and one Bhanwaru shouted that Megha is killed. On this shouting several people in the fair, along with police constable, gathered there. On seeing the police some of the accused ran away and some went away in a tractor, Megha Ram was unconscious. The First Information Report was prepared as per the statement of the witness, who duly signed it. It will thus be seen that this witness speaks of assault by others with sticks and assault by Hema Ram with axe. The witness has said in cross-examination that about 500 to 1000 people had assembled in the fair and several people has come on the spot on hearing shouts by the witness. Yet the prosecution has examined only two persons. This witness has further stated in the cross-examination that he had told the Investigating Officer that Hema Ram had hit deceased Megha Ram on the head with axe. No reason is given why this statement by the witness does not find mention either in the First Information Report or the statement of the witness under Sec. 161 of the Criminal Procedure Code. The statement Ex. D. 1 made under Sec. 161 Cr. P. C. has been proved by the Investigating Officer. The witness has then stated in the last paragraph of his deposition that which of the accused hit Megha Ram at that place, cannot be told. ( 7 ) PW 5 Mst. Panni has been declared hostile and her deposition is inconsequential. PW 6 Bheekh Singh is Head Constable who proved an earlier complaint by Megha Ram. However, the fact that there was a rivalry between the group of the assailants and the complainant is undisputed. The deposition is, therefore, inconsequential. ( 8 ) PW 7 is Birma Ram who is a Panch to the body Panchanama. The fact of Megha Ram meeting homicidal death is not disputed and cannot be disputed. PW 8 Motiram who is yet another Panch. PW 9 is Bhanwara Ram the second eye-witness. He has deposed that 8 people came in camel cart and 4 people came by tractor. He has named all the 12 accused. He then states that all the accused chased Megha Ram and started beating him. PW 8 Motiram who is yet another Panch. PW 9 is Bhanwara Ram the second eye-witness. He has deposed that 8 people came in camel cart and 4 people came by tractor. He has named all the 12 accused. He then states that all the accused chased Megha Ram and started beating him. He then states that when the deceased Megha Ram was encircled and assaulted by the accused, he (deceased) used his own lathi and gave an effective defence. He has also said that Sona Ram and Hema Ram had axe and Hema Ram gave an axe blow on the head of Megha Ram. In his cross-examination he has stated that he cannot state as to whether Sona Ram hit with axe. He cannot state as to which accused hit whom, where? ( 9 ) IT will thus be seen that PW 4 Bakhta Ram has made a definite improvement so as to involve Hema Ram in the fatal attack. The improvement is material. PW 9 Bhanwara the only other eyewitness fails to remember attack by every other assailants and has only stated about Hema Ram, the present appellant. If the testimony of this witness is to be accepted fully, it is not possible to come to a conclusion that he has possibly seen Hema Ram giving death blow. Both these eyewitnesses have deposed that 12 persons assaulted the deceased. They have deposed that they were unable to state-with any certainty what blow was given by whom and at what place on the body of Megha Ram. It is obvious that Megha Ram was furiously attacked by the assailants and it is, therefore, natural in such circumstances, even for the eye-witness to be unable to depose with clarity the specific role played by the assailants. ( 10 ) THE learned Sessions Judge, on appreciation of the evidence on record, has come to the conclusion that the evidence of these two witnesses in relation to accussed is not acceptable. These two witnesses have admittedly deposed that they are unable to ascertain the blows of the assailants. They are unable to state which assailant gave which blow and they have both deposed that axe was used by two persons one of them has been acquitted by the learned Sessions Judge. These two witnesses have admittedly deposed that they are unable to ascertain the blows of the assailants. They are unable to state which assailant gave which blow and they have both deposed that axe was used by two persons one of them has been acquitted by the learned Sessions Judge. ( 11 ) IT was, therefore, submitted by the learned counsel that in view of the peculiar facts of this case where 12 persons assaulted a single individual with lathes and axes and no particular role can be attributed to any particular individual, it is impermissible in law to record conviction against only one person. ( 12 ) WE find this contention very substantial. Admittedly, the witnesses were unable to ascertain with certainty the role played by each accused. The learned trial Judge, on a proper appreciation of the evidence on record, came to the conclusion that in such circumstances no conviction could be recorded against 11 persons. The sole reason given by him for convicting Hema Ram is the fact that both PW 4 Bakhta Ram and PW 9 Bhanwara specifically stated that the death blow was given by the present appellant. However, in coming to this conclusion, the learned Judge has not taken into consideration the evidence of these two witnesses in its entirety. He has ignored the improvement done by PW 4 Bakhta Ram as also the inability of PW 9 Bhanwara to assign a specific role to a specific assailant. ( 13 ) THE other witnesses, including the Investigating Officer are inconsequential. It is in our considered opinion that in such circumstances where 12 persons assaulted a single individual, 10 of them were freely using lath is and 2 of them were using axe, which of the two gave the fatal blow cannot be said with any certainty and the learned Sessions Judge had acquitted one of the two axe-holders. In the state of events as it exist benefit of doubt must go to the accused. A reasonable doubt is created as to whether it was the blow given by Hema Ram or the blow given by Sona Ram which caused the fatal injury. In the state of events as it exist benefit of doubt must go to the accused. A reasonable doubt is created as to whether it was the blow given by Hema Ram or the blow given by Sona Ram which caused the fatal injury. There is no reason to accept the testimony of the eyewitnesses when they state that it was Hema Ram who caused the fatal blow because they have abundantly made it clear in their cross-examination that they were unable to ascertain any specific role to any assailant as there were many of them and the attack was furious. In such circumstances, there is no alternative but to give benefit of doubt to the accused Hema Ram as he is the only person of the 12 assailants who has been found guilty. The material, on the basis of which he is found guilty, is not sufficient to warrant conviction. It does not over-rule the possibility of the assailant being some one else than the present appellant. There is no appeal by the State against the other acquitted accused. In our opinion, therefore, benefit of doubt must go in this case to the appellant. In the result, the appeal is allowed. The judgment of conviction dated 6-4-1990 passed by the learned Addi. District and Sessions Judge, Nagaur, sentencing the accused appellant Hema Ram for imprisonment for life under Sec. 302 of the Indian Penal Code, is set aside. He be set at liberty forthwith, if not required for any other offence. Appeal allowed.