Judgment P.K.Deb, J. 1. This appeal has been preferred against the judgment and order dated 8th February, 1991 passed by Shri Pius Xess, the then 1st Additional Sessions Judge, Dhanbad in S. T. No. 66 of 1986 convicting the accused-appellants under Section 302/149, I. P. G. to undergo imprisonment for life and also under Section 149,1. P. C. and to undergo R. 1. for two years and both the sentences have been ordered to run concurrently. 2. As per prosecution case, PW-6 Kadir Mian lodged a first information report on 15-8-1984 at 7.30 p.m. before the officer-in-charge, Tundi Police Station alongwith the deadbody of his younger brother Chottu Mian and accompanied by Samsuddia Ansari, Jamshed Ansari, Hamid Ansari, Zamiruddin Ansari, Alimuddin Ansari and Sirajuddin Ansari alleging that on that date, deceased Chottu Mian had gone to his field at Nakabandh and while returning home at about 3 p.m., all the accused persons alongwith others attacked him being armed with Farsa, Tangi, Sabol, Bhala, bows and arrows. On being assaulted, Chottu Mian fell down and he was then assaulted with back portion of Tangi. Upon alaram being raised, PW 2, Samsuddin Ansari, PW 3, Jamshed Ansari, PW 8 Alimuddin Ansari, PW 9 Jamurddin Mian and several other persons arrived at the site of scene and seeing them the assailants fled away. The injured Chottu Mian was first taken to Tundi hospital for treatment but there he was advised to be treated at Dhanbad Hospital, but on way to the hospital, Chottu Mian died at Thanamore. As per prosecution case, the cause of assault of Chottu Mian was that in the last May, Informants brother Aitu Mian was assaulted and money was snatched away by the accused persons from him for which Aitu Mian instituted a criminal case against the accused persons. As per the first information report, appellant No. 3 Maula Mian, appellant No. 7 Kurban Mian, appellant No. 11 Saro Mian and appellant No. 14 Sekandar Mian were armed with Tangi while appellant No. 5 Dil Mohammad Mian, appellant No. 6 Wazir Mian, appellant No. 10, Suleman Mian, appellant No. 12, Haro Mian were carrying bows and arrows on their shoulder and Tangi in their hands. It was also alleged in the F. I. R. that appellant No. 2, Rajo Mian and appellant No. 15, Idris Mian were armed with bows and arrows and appellant No. 4 Amruddin Mian assaulted with Bhala and against other omnibus allegations have been made of assaulting Chotu Mian with the weapons in their hands. 3. Besides these 15 accused persons, there was another accused, Kalo Mian who died before the charge was framed and his name was dropped. It has further been informed before this Court that appellant No. 2, namely, Rajo Mian died after the appeal was filed. 4. For and on behalf of the prosecution in total ten witnesses have been examined. Out of them, PW 6 Kadir Mian is the informant while PW 7 Dr. D. K. Dhiraj is the medical officer, who held autopsy over the deadbody of Chottu Mian and PW 10, Prem Chand Roy is the Investigating Officer of this case, who happened to be the officer-in-charge of Tundi Police Station at the relevant time. 5. Amongst the other witnesses, PW 1 Altu Mian is the younger brother of the informant in this case. He has posed himself to be an eye witness. PW 2, Samsuddin Ansari is the son of the informant and PW 3, Jamshed Ansari is the son of the deceased. They had also stated that they had witnessed the occurrence. Other eye-witnesses are PW 4, Ali Hussain Ansari, PW 5, Hamid Ansari. PW-8, Alimuddin Ansari and PW 9, Jamir-uddin Ansari. They are not directly related with the informant or the deceased. 6. First of all let us take the evidence of PW 6, who happens to be the vital witness in this case. He is the full brother of deceased Chottu Mian. He had filed F. I. R. wherein vivid descriptions have been given as to how the occurrence took place and as to who assaulted the deceased by what weapons. According to him, on the alleged date and time of occurrence, he was going to Nayabandh for purchasing the articles of shop there but when ha reached near Nakabandh at Pipratand, he saw that his brother Chhotu Mian returning from his field and on the way, he was waylaid by ali the 16 accused persons coming out from a nearby hide out of a ditch armed with Sambal Farsa, Bhala and bows and arrows. According to him, accused Kobad Mian caught hold of him and accused gave Sambal blow on ins head. Accused Moula Mian assaulted him from the back portion of Tangi causing injury on his right leg and accused Ahmadjan Mian assaulted Chottu Mian with Farsa. Accused-Amruddin Mian assaulted Chottu Mian with Bhala and Dil Mohammad and Suleman Mian assaulted him with Tangi. Chhotu Mian raised alarm. As a result of assault on him, Chotu fell down on the ground but he was further assaulted by the accused person. Hearing alarm, the witnesses reached there at which the accused persons fled away towards the ditch. Thereafter the Chottu was brought to his house on a Khatiya from where he was taken to Tundi P.S. and from there, at the advice of the police, to Tundi Hospital, but at Tundi Hospital he was not treated as the injuries were grievous and referred to Sadar Hospital Dhanbad but on way to Dhanbad, near Tundi P.S. the injured succumbed to his injuries and as such the deadbody of Chottu was brought to Police Station where this PW 6 gave Fardbeyan (Ext. 3) about the alleged occurrence. 7. Some contradiction have been brought in his evidence regarding his statement before the police at Tundi regarding the specific assault as alleged by him in his evidence. 8. PW 2 is also alleged himself to have seen the occurrence. According to him, he was grazing his cattle near old Dargah. PW 3 was also working in his field and saw the occurrence from his field. They have also gave in detail regarding the assault of the accused persons and the manner of assault in their evidence. The independent witnesses are PW 4, PW 5, PW 8, PW 9. Admittedly, PWs 1,2,3 and 6 are the near relations of the deceased and they are termed as partisan witnesses from the side of the accused persons. 9. In the impugned judgment, the learned court below has observed that the evidence of the partisan witnesses as mentioned above have been fully corroborated by the independent witnesses as mentioned above, but on careful and independent scrutiny of the evidence of each of the alleged eyewitnesses including the partisan and independent witnesses, I am of the view that there are differences and variations of the evidence of those witnesses regarding manner of occurrence and the specific attributation to each individual accused persons. Although in the court, they tried to give evidence supporting PW 6 but some contradictions have been brought regarding the specific attribution in the evidence of these witnesses as regards their statement under Section 161, CrPC before the Investigating Officer and those contradictions have been proved in the evidence of PW 10, the Investigating Officer. 10. Mr. P. S. Dayal, appearing on behalf of the accused-appellants has strenuously argued that there are variations in the occular evidence and the medical evidence and when such differences are apparent on the face of it then the evidence of the partisan witnesses being somehow corroborated by so-called independent witnesses cannot make the prosecution story proved beyond all reasonable doubt against each and individual accused-appellants. The differences might be there regarding the evidence of witnesses regarding specific attribution to each and every accused-appellants and it is natural when it appears that the witnesses have seen the occurrence from some distance and that being surrounded by 16 accused persons being armed with specific weapons, individual witnesses might have seen the occurrence from a different angle and that might have caused the difference and variation regarding the specific asbault of the person of the deceased, but when there is difference regarding the injuries found on the person of the deceased on autopsy and the occular evidences adduced by the witnesses then it must be seen as to how and to what extent the accused persons can be held liable for the offence under Section 302, I.P.C. being roped with Section 149,I.P.C. 11. Mr. Dayal further submitted that 16 accused person have been said to be armed with deadly weapons attacked the deceased allegedly with the intention of committing murder then it cannot be construed even after streching imagination that the deceased would come out only injured that too not on vital parts of the body from the clutches of 16 accused persons. 12. The facts are required to be scrutinised closely to find out as to whom of the accused are liable for the committing of the offence. It appears that in the impuged judgment, the learned court below bound all the accused persons roping under Section 149 I.P.C. without specifically mentioning about the responsibility or liability of each and individual persons. 12. The facts are required to be scrutinised closely to find out as to whom of the accused are liable for the committing of the offence. It appears that in the impuged judgment, the learned court below bound all the accused persons roping under Section 149 I.P.C. without specifically mentioning about the responsibility or liability of each and individual persons. Legally, it is also not required to do so, but in the present case when there is apparent variation and differences between the medical evidence and the occular evidence such scrutiny is a must to hold the accused persons guilty beyond all reasonable doubt. 13. The medical evidence as deposed by PW 7 may be enumerated as follows : (i) Incised wound 1"X11/4"X skin deep placed 4 1/2" proxinal to the right wrist over exterior surface of the fore-arm. On both sides of those wounds, there was blackish swelling 5"X4" with ecchymosis of the soft tissues underneath; (ii) Stab wound 1/2"X1/4"X3/4" over the left arm placed 1" proxinal to the back of elbow joint ; (iii) Liniar abrassion two in number over front of the middle of the left arm measuring 2" in length ; (iv) Defused swelling of the left supra scapular region 4"X2" of ecchymosis underneath ; In this very area, there was an abrassion l/2"Xl/2". (v) Incised wound l"X1/6" skin deep over right tibial tuberocity ; (vi) Stab wound l1/4"X1/4"X bone deep over inner aspect of right leg 21/2" proxinal to the malleolins ; (vii) Lacerated wound 3/4"X1/4"X bone placed 1/2" proxinal to proceeding injury, both bonds of the leg were fractured with laceration of the soft tissues ; (viii) 2 stab wound placed 1/4 away from each other parralel were 4 1/2" proxinal to the left outer melleolins. They measured 1/2"X 1/6"X 1/2"X 1/3"X 1/6"X 1/2" respectively. (ix) Lacerated wound on the left side of the vault 4" above eye-brow measuring 1 1/2"X1/2"X scalp deep ; (x) Incised wound on the right side head placed 3" above a 1" behind right mastoined. The wound was L-shaped, each arm measuring 1"X1/4"X scalp deep. Further dissection shows heamatoma under the scalp over both pavietal area. (ix) Lacerated wound on the left side of the vault 4" above eye-brow measuring 1 1/2"X1/2"X scalp deep ; (x) Incised wound on the right side head placed 3" above a 1" behind right mastoined. The wound was L-shaped, each arm measuring 1"X1/4"X scalp deep. Further dissection shows heamatoma under the scalp over both pavietal area. A linear fracture of the right temporal and bone was seen for 3 1/2" which mingled with front pavietal sature on medial which was separated for a disstance of 1 1/2" on subdural and extratibbal Heamatoma was found over both side of the head. (x) Thoraco abdominal dissection shows viscera to be pale both sides of the heart was empty. Stomach was full with undigested rice etc., the bladder was partially full. According to the doctor, death resulted for combined effect of comma and shock as a result of the injury caused both by hard and blunt force impact and sharp cutting weapon. The doctor has further deposed that wound may be caused by sword/Kulhari. 14. From the above post-mortem and deposition of the doctor, it appears that there are in all three incised injuries, four stab wounds and rest of the other injuries by blunt weapons. It is in the evidence of witnesses that when the deceased fell down, be was assaulted by the blunt side of Tangi by the accused who were armed with Tangi. From the F. I. R. it is evident that it has been clearly stated that the appellant Nos. 3, 5, and 10 has assaulted with Tangi, appellant No. 8 with Sabal, appellant No. 13 with Farsa and appellant No. 4 with Bhala. It has also been mentioned that the alleged eye-witnesses have contradicted in their statement regarding the specific attribution and in their evidence before the Court and their statements under Section 161, Cr, P. C, but they were consistent regarding their participation of the accused persons in the crime. 15. Mr. It has also been mentioned that the alleged eye-witnesses have contradicted in their statement regarding the specific attribution and in their evidence before the Court and their statements under Section 161, Cr, P. C, but they were consistent regarding their participation of the accused persons in the crime. 15. Mr. Dayal strenuously argued that there was practically no assault on the vital parts of the body and as such the intention of committing murder as alleged against the accused persons cannot be inferred from the nature and side at the injuries caused on the person of the deceased It should be mentioned here that in the impugned judgment of conviction, the learned court below did not go for the specific attribution and did not analyse the evidence of individual witnesses for the purpose. It is true that for conviction roping under Section 149, I. P. C, the same is not required if the participation could be proved beyond all reasonable doubt, but for the purpose of participation it must be thoroughly scrutinised of the evidence adduced and the circumstances found in the case. It is alleged that most of the accused persons were armed with bows and arrows and when some of the witnesses tried to inteifere, they were chased away and also arrows were shot from the bows and stones were thrown to disperse them away, but there is not an iota of evidence regarding this shooting of arrows and pelting of stones. I. O. has specifically stated that he did not find any sign of shooting of arrows or pelting of stones in and around the place of occurrence. In that circumstances, it is very difficult to swallow that some of the accused persons were armed with bows and arrows and they had used the same for fulfilling their intention. The presence of those accused persons having armed with bows and arrows became doubtful in the circumstances of the case. 16. On independent scrutiny of the evidence on record including the variations and differences of their statement, I came to the finding that the prosecution could be able to prove beyond all reasonable doubt about the presence of appellant No. 3, Maula Mian, appellant No. 5. 16. On independent scrutiny of the evidence on record including the variations and differences of their statement, I came to the finding that the prosecution could be able to prove beyond all reasonable doubt about the presence of appellant No. 3, Maula Mian, appellant No. 5. Dil Mohammad Mian, appellant No. 10, Suleman Mian, appellant No. 8, Kobad Mian, appellant No, 13 Ahmadjan Mian nnd appellant No. 4, Amruddin Mian at the site of the occurrence being armed with deadly weapons and they had also actively participated in the commission of murder of deceased, Chotu Mian. 17. The injuries on the hands and legs may be caused when the deceased tried to avert the blows by raising his hands and legs to have wound on the vital parts. This is a natural human instict and in that process while saving/ averting the blows of deadly weapons, some injuries were caused in hands and legs, but this does not take away the alleged intention of the abovenamed six accused persons in causing injuries with the intention of killing Chottumian. Their presence at the site of the occurrence being armed with deadly weapons and their participation in the assault could be proved beyond all reasonable doubt. 18. Against the other accused persons, as their presence was doubtful in nature with their participation, they are entitled to acquittal on benefit of doubt. 19. Regarding the defence version, the learned court below rightly rejected the same. The FIR lodged by Jakir Mian seemed to be an after thought from the circumstances and in the course of assault, there may be minor injuries on his person, non-explanation of which does not make away the prosecution story. Regarding the place of occurrence, the statements made by Mr. Dayal is not tenable in view of the overwhelming evidence of the eye-witnesses supported by the Investigation Officer. I also do not find much force as to why the statement of the deceased was not taken by the police when there is evidence that he was alive and was in a position to speak when he was brought to the police station before going for medical treatment. The persons who were accompanying the injured at the relevant time were the eye-witnesses and one of them had filed F. I. R. soon after the death of deceased when he was on the way for medical treat-, ment. 20. The persons who were accompanying the injured at the relevant time were the eye-witnesses and one of them had filed F. I. R. soon after the death of deceased when he was on the way for medical treat-, ment. 20. After proper scrutiny of the evidence on record, I came to the finding that the conviction and sentence arrived at under Section 302/149, I. P. C, is proper and justified in respect of accused-appellant No. 3, Maula Mian, appellant No. 4, Amruddin Mian, appellant No. 5, Dil Mohammad Mian, appellant No. 8, Kobad Mian, appellant No. 10, Suleman Mian appellant No. 13-Ahmadjan Mian, and as such their conviction is hereby upheld and confirmed. The other accused-appellants, save and except the above-named six, namely, Jakir Mian, Nazir Mian, Kurban Mian, Kashim Mian, Saro Mian, Haro Mian, Sekandar Mian and Idris Mian, are acquitted on benefit of doubt and they may be released forthwith, if not wanted in any other case. The appeal is thus partly allowed. R.N.Sahay, J. 21 I agree.