Judgment P.K.Deb, J. 1. The abovenamed three appellants in this case have been convicted under Section 302/34,I. P. C. by judgment and order dated 19-7-1990 passed by Shri Uma Shankar, Ist Additional Sessions Judge, Hazaribagh in Sessions Trial No. 143 of 1987 arising out of Barhi P. S. Case No. 2(1) 87 and were sentenced to undergo imprisonment for life. 2. The abovenamed three accused-appellants alongwith five lady accused belonging to the same family were proceeded against for commiting murder of another brother of accused-appellants. Rojan Khan and his wife on 2-1-1987 at about 3 p.m. within the potato field where the deceased was said to be irrigating the same. The case was instituted on the basis of a statement of Asru Khatoon, daughter of the deceased Rojan and his wife, which was recorded by the investigating Officer on 3-1-1987 at about 11.30 a.m. at the place of occurrence. Police cams to the place of occurence on hearing some rumour regarding Marpeet. As par the statement of the PW 1, the case of the prosecution is that the deceased Rojan Khan was irrigating his potato field from the well where his wife Amna Khatoon was taking water. The accused-appellant Wahab Khan is alleged to have reached there and began irrigating his own potato field from the same well. It is the further case of the prosecution that the accused-appellant, Wahab Khan asked Rojan Khan as to why he was irrigating his field from the same well. There was some altercation in between Wahab Khan and the deceased and in midst of that altercaticn Wahab Khan rushed to assault Rojan Khan and called also other brothers including the lady members of the family to assault Rojan Khan. The deceased Rojan Khan made attempt to run away from the place, but Wahab Khan alleged to have caught hold of him and then Ismail Khan, the other accused-appellant No. 2 gave a blow with Kudal on the back portion of the head of Rojan Khan on which he fell down with his face downwards. In the meantime, it is further alleged that Aayesha Khatoon brought a Sabal and handed over to the accused- appeliarit Nizam Khan and accused-appellant No. I, Wahab Khan also brought a lathi from his house and they alongwith other family members started assaulting Rojan Khan with their respective weapons. In the meantime, it is further alleged that Aayesha Khatoon brought a Sabal and handed over to the accused- appeliarit Nizam Khan and accused-appellant No. I, Wahab Khan also brought a lathi from his house and they alongwith other family members started assaulting Rojan Khan with their respective weapons. Ameena Khatoon tried to save her husband but she was also assaulted by all of them. The son and daughter of the deceased started raising Halla, but none of the villagers came to their rescue. Both Ameena Khatoon and Rojan Khan died at the spot due to the assault. After some time, the villagers rushed there. On the following day on 3-1-1987 at about 11.30 a.m., S. I. S. B. Sharma of Barhi Police Station came to the place of occurrence on the basis of a rumour and he recorded the fardbayan of PW-1. the daguhter of the deceased on the basis of which F. I. R. was registered. In the course of Investigation, dead bodies of both the deceased were inquested and sent through challan for the purpose of autopsy. On completion of investigation, charge-sheet was submitted against eight persons including the above three accused-appellants and the five female members. On commitment to the Court of Sessions, charges were framed under Section 302/34, I. P. C. by order, dated 27-5-1987 and when the same was read over and explained to the accused persons, they pleaded not guilty. 3. Defence case is total denial of the prosecution story. For and on behalf of the prosecution, as many as 14 witnesses have been examined in this case. Out of them, PWs-1 and 2 are the star witnesses of the prosecution and they happen to be daughter and son of the deceased. PW-3, Yunus Khan is a search witness of the house of the accused persons. PW-4, Shakour Mian is an witness of the inquest report. PW-5, Md. Khalii is a reported witness by PW-l,Asru Khatoon. PW-6, Noor Mian is another witness for the inquest report. PW-7, Md. Israil Mian is another witness for search. PW-8, Dr. N. K. Das held post mortem over the dead bodies of both the husband and the wife. PW-9 Badri Rana came to the place of occurrence after hearing hallah, but he has not supported the prosecution story and as such declared hostile. PW-7, Md. Israil Mian is another witness for search. PW-8, Dr. N. K. Das held post mortem over the dead bodies of both the husband and the wife. PW-9 Badri Rana came to the place of occurrence after hearing hallah, but he has not supported the prosecution story and as such declared hostile. PWs-10 and 11 are the process servers, who executed processes under Section 81 and 82 against the lady accused. PW-12 Sabia has been produced to depose as an eye-withess for the prosecution. She is a girl of only seven years and as such could not understand the question, her evidence could not be taken by the learned Sessions Judge. PW. 13 is the S. D. O., who executed the process under Section 82 and 83, Cr, P. G. PW-14, Surya Bhushan Sharma is the Investigating Officer of the case. 4. On scrutiny of the evidence on record, the learned Sessions Judge arrived at the conclusion that the names of the female accused-persons have been included out of overjealcusness and as such he found that only the male three accused were involved in committing the crime of double murder in furtherance of their common intention and as such convicted them under Section 302/34, I. P. C. and sentenced them accordingly. 5. Mr. T. R. Bajaj, the learned counsel appearing for and on behalf of the abovenamed appellants impugned the judgment of conviction on the ground that the whole story of the prosecution suffers from embelishment, concoction etc. when it could be found from the evidence of PW-1 that on the day of occurrence i.e., on 21-1-1987 itself she had gone to the Police Station alongwith her maternal uncle Shafique and gave a statement before the police and remained in the police station for the whole night, but the prosecution is coming up with the story that the Investigating Officer came to the place of occurrence on hearing a rumour about Mar-peet from the mouth of a person of the neighbouring village and then on the next day, be came to the place of occurrence and then he took the Fardbayan of PW-1. The story that PW-1 is now giving has not been supported by any one and she has come up with this story for the first time about going to the police station on the very date of occurrence and lodging information alongwith her maternal uncle, but the whereabouts of the maternal uncle has not been given. The Investigation Officer has totally denied about the making of any information by the PW-1 at the police station on the date of occurrence he has supported the story of the prosecution to the effect that he went to the place of occurrence on bearing rumour and after making a Saneha at the Police Station. 6. It is true that on such evidence before the learned trial court from the side of PW-1, the prosecution story has been shakened a bit but F. I. R. not being a substantive piece of evidence, it should not have so much bearing if the case of the prosecution is found to be true otherwise from the oral testimony of the PWs and the circumstances as narrated from the side of the Investigating Officer and the independent witnesses. The whole prosecution story is based on the evidence of the two eye-witnesses, namely, PW-1 and 2, who happened to be the daughter and son of both the deceased. 7. The position remains to the effect that there was enmity between the deceased father of PW-1 and accused persons, who are his own brothers and the mother of both the deceased and the accused persons, on the ground that the mother had bequeathed the whole property in favour of the accused-appellants, and the deceased was deprived of the property and for that reason definitely the deceased was not in good terms with the accused persons. He must have wanted his share in the property which caused the altercation on flimsy grounds. After the death of parents of PWs-1 and 2, they became helpless. None of villagers came in their rescue as it is found that the deceased-father returned home after his long stay in Calcutta and as such the villagers must have good relations with the accused persons and not the deceased. In such helpless condition, it is very difficult to believe that the PW-1, a girl of about 14-15 years would go to the police station of herself. In such helpless condition, it is very difficult to believe that the PW-1, a girl of about 14-15 years would go to the police station of herself. The existence of maternal uncle of PW-1 could not be found out from any other evidence except that of PW-1 alone. There is no reason why PW-1 should stay for the whole night at the police station. Perhaps for the purpose of saving the defect regarding delay in lodging the F. I. R. this story has been concocted by PW-1 of lodging information at the police station by going there being accompanied by her maternal uncle. The case diary does not show anything regarding existence of any maternal uncle of PW-1. Moreover, there is tendency of child witnesses of exaggerating the facts more so when their near and dear one had been attacked. 8. Let us now come to the discussion about the actual occurrence. Post mortem report of both the deceased held by PW-8 on 4-1-1987 at 2 p.m. revealed the following injuries on the person of the deceased : "(i) Amna KhatoonLacerated wound on left side of parietal region of 6calp with laceration of left whole ear 3" X 1" X skull cavity with brain matter coming out. (ii) lacerated wound in front of left ear 2" X 1" X bone deep. (iii) lacerated wound left face 1/2 "Xi" X bone deep. (iv) abrasion left leg 1 "X 1/2". (i) Rajan Khan.Lacerated wound on the occipital region of scalp 1" X J" X bone with depressed fracture of occipital bone. (ii) lacerated wound on right leg 1" X ½" X bone deep with fracture of right tibia. (iii) multiple bruises on left arm 6" X 1/2" to 1" X 1/2". (iv) multiple bruises on left scapular region 6" X 1/2" to 4" X 1/2". (v) abrasion right elbow posterior 1" X 1/2". (vi) bruise forehead 1/2" X". (vii) bruise right side of chest in lower part 3" X 2"." 9. The injuries on the person of Amna Khatoon discloses lacerated wounds on the head region definitely caused by hard and blunt substance. There is only one bruise on the left leg, which might be caused due to fall On the other hand, there were two lacerated wound on the person of Rojan Khan, on the head region and another on the right leg. There is only one bruise on the left leg, which might be caused due to fall On the other hand, there were two lacerated wound on the person of Rojan Khan, on the head region and another on the right leg. Other injuries were only bruises which might be caused on fall or because of scuffle etc. As per the evidence of PWs 1 aod 2 both Amna Khatoon and Rojan were given blows on the head region by accused-appellant No. 2, Ismail Khan by means of a Kudal According to PW 1, the assault was made by the sharp edge of Kudal, but the post mortem discloses lacerated injuries only. It is also stated by PW 1 that Sabal and Sabal Lathi etc. were also used by the other accused-appellant and other accused persons, who have been acquitted by the learned court below. But main thrust on close scrutiny of the evidence of PWs 1 and 2 is or accused-appellant, Ismail Khan only. There is clear evidence of PW 1 that receipt of the blows by Kudal, her father Rojan Khan fell down and died instantaneously. The same is the evidence in respect of deceased Amna Khatoon. Doctor has opined that the injuries might have been caused by blunt portion of Kudal and of the Sabal. It is further evidence that when Ismail Khan gave the blows by means of Kudal then the deceased were surrounded by the accused persons, it might not be very visible for PW 1 to see exactly as to whether the blow was given by sharp edge portion or blunt portion of the Kudal. Moreover, the learned court below has rightly pointed out that the weapon Kudal, although has got a sharp edge, it is not a sharp edge like that of knife or dagger or other sharp edge weapons. The injury by Kudal even by sharp edge that too in the head region might cause lacerated injuries and not incised wound. 10. Thus, I find on close scrutiny of the evidence of PW 1 that the injury by Kudal was made by accused-appellant, Ismail Khan and that caused the death of the both deceased persons. Her evidence regarding sharp edge of Kudal etc. might be an after thought and exaggeration only. 10. Thus, I find on close scrutiny of the evidence of PW 1 that the injury by Kudal was made by accused-appellant, Ismail Khan and that caused the death of the both deceased persons. Her evidence regarding sharp edge of Kudal etc. might be an after thought and exaggeration only. I have already stated that while there is slight exaggeration, concoction and enbellishment that too by a child witnesses then it is the duty of the court to find out the grain from the chaff and as such I am convinced thai the fatal injuries case caused by Ismail Khan by means of a Kudal. The evidence against other two accused-appellants regarding assault by Sabal and other weapon could not be established beyond all reasonable doubt nor the medical evidence supported the same and as such attribution of specific assault of other two accused-appellants could not be proved beyond doubt. Moreover, the only independent witness, PW 5, Md. Khalil has specifically stated that he was reported by PW 1, to the effect that her parents were killed by her uncle. Learned Court below wrongly read with evidence and mentioned it as uncles instead of uncle. His evidence may be quoted as follows : "ROJAN KHAN KI LADKI ASHRU KHATOON AUR LADKA ANWAR AAYE AUR KAHE KI MERE BAAP AUR MAA KO MERE CHACHA MAAR DIYE" 11. Thus, his evidence reinforces the fact that it was Ismail Khan alone, who happened to be an uncle of PWs 1 and 2 had caused the death of Rojan Khan and his wife Amna Khatoon. 12. Mr. Bajaj again submitted that admittedly there was enmity between the accused persons and the deceased and there was altercation between the accused and deceased persons and as such even if any assault be proved against any of the accused appellants, they cannot come up under Sectian 301 I.P.C. rather that should come down under Section 304 Part-II of the Indian Penal Code. I am not inclined to accept the submission of Mr. Bajaj. I am not inclined to accept the submission of Mr. Bajaj. It is true that there was altercation on possession over the potato field but then the accused Ismail Khan assaulted Rojan Khan on his head region with the Kudai and when Amna Khatoon came in rescue of her husband, who was also assaulted on the head region with the same Kudal which goes to show that the assault was made with very intention of causing culplable homicide amounting to murder, hence the case has been proved beyond all reasonable doubt against accused-appellant, Ismail Khan, but the other two accused-appellants, namely, Wahab Khan and Nizam Khan are entitled to get benefit of doubt. 13. In the result, the appeal is partly allowed. 1 he conviction and sentence against accused-appellant No. 1, Wahab Khan and appellant No. 3, Nizam Khan is hereby set aside, but the conviction and sentence against the accused-appellant No. 2 Ismail Khan is hereby confirmed and upheld. Accused appellants 1 and 3 namely, Wahab Khan and Nizam Khan are acquitted on benefit of doubt and they may be released forthwith, if not wanted in other case. The period of detention of convicted-appellant, Ismil Khan may be set off against the award of sentence. R.N.Sahay, J. 14 I agree.