Judgment R.N.Sahay, J. 1. These three appeals have arisen from Sessions Trial No. 270 of 1978/55 of 1985 on the file of 3rd Additional Sessions Judge. Madhubani. Thirty three persons were placed on trial in this case for having committed offences punishable under Secs. 302/ 149, 148, 324, 307, 147, 323, 337 and 426 of the Indian Penal Code. On conclusion of the trial only 29 persons were found guilty and four persons were not found guilty and were acquitted. All 29 persons were convicted and sentenced as follows: (i) Cr. Appeal No. 249/87. -The sole appellant Srimohan Jha was convicted under Section 302/149 Indian Penal Code and sentenced to life imprisonment. (ii) Cr. Appeal No. 251/87. There are 23 appellants in this appeal. Appellants no.1, 2 and 3 were convicted under Sec. 302/149 Indian Penal Code and sentenced to life imprisonment. Appellants no. 4 and 5 were convicted under Secs. 148 and 323 Indian Penal Code and sentenced to undergo R I. for sixmonths under each count. Appellant no. 6 was convicted under Secs. 426 and 147 Indian Penal Code and sentenced to undergo R.I. for four months and three months respectively. Rest of the appellants have been "convicted under Sec. 147 Indian Penal Code and sentence three months imprisonment each sentences were directed to run concurrently. (iii) Cr. Appeal No. 274/87. There are five appellants in this appeal. Appellant no. 1 has been convicted under Sec. 302/149 Indian Penal Code and sentenced to life imprisonment. Appellants No.2 to 5 have been convicted under Sec. 147 Indian Penal Code and sentenced three months R. I. 2. Appellant No.1 Jagdish Yadav of Cr. Appeal No. 251 of 1987 died during the pendency of this appeal and a report in this regard has also been received from the court below. Thus. Cr. Appeal No. 251 of 1987 stands abated as against appellant No.1. 3. An application has been filed that some of the appellants namely. Appellants no. 14 Bahadur Yadav. Appellant No. 15 Gujan Yadav. Appellant No. 16 Rasiklcil Yadav. Appellant No. 17 Bhallu Jha and Appellant No. 18 Upendra Jha have died during the pendency of this appeal. However no proof of their death has been filed and as such we shall proceed on the presumption that they are alive and this appeal has not abated against these appellants. 4. Appellant No. 16 Rasiklcil Yadav. Appellant No. 17 Bhallu Jha and Appellant No. 18 Upendra Jha have died during the pendency of this appeal. However no proof of their death has been filed and as such we shall proceed on the presumption that they are alive and this appeal has not abated against these appellants. 4. The evidence in this case reveals that minor incident took serious turn and one person lost his life and several persons received injuries. The nasty incident which led to the prosecution and resulted in the conviction of the appellants happened on 5th June, 1973 in village Brahmpur PS. Phulparas in the district of Madhubani. The Investigating Officer after completing investigation submitted charge sheet against 33 persons who were either apprehended or surrendered, 12 accused persons were shown as absconders. Three accused persons died during investigation. Trial of five persons were separated and remaining 33 persons were put on trial. 5. How the occurrence started has been stated by Jageshwar Yadav (PW.3) who is the material witness. On 5-6-1973 at 4.30 PM. This witness had gone to the orchard of Ram Narayan Jha which this witness had taken on Batai. This witness saw the servant of Sri Prasad Yadav namely. Laxmi Yadav plucking mango twings and feeding them to buffalo. He forbade him to do so but he paid no heed and continued with the act this witness returned home to inform his uncle Tharu Yadav and cousin Modanand Yadav about what he had seen. Modanand Yadav advised Tharu Yadav to go to the orchard to find out what had happened. This witness went to graze his cattle in the same orchard. In the meantime, he heard hulla. He went inside the orchard and saw Sri Prasad Yadav on the one hand and Modanand Yadav and Tharu Yadav on the other hand engaged in altercation. 50 to 60 persons were seen siding with, Sri Prasad Yadav who were armed with lathi. bhala and farsa. This witness identified large number of persons in the mob. He named them in his evidence. Sri Prasad Yadav ordered his companions to assault Tharu Yadav. On this, Tharu Yadav and Modanand Yadav ran for their life and they were chased by the mob. 6. This witness has spoken about the role played by the different accused persons in the occurrence. He named them in his evidence. Sri Prasad Yadav ordered his companions to assault Tharu Yadav. On this, Tharu Yadav and Modanand Yadav ran for their life and they were chased by the mob. 6. This witness has spoken about the role played by the different accused persons in the occurrence. He stated that appellant Sukhdeo Mishra assaulted Tharu Yadav on his head by farsa. Tharu Yadav fell on the ground. Baleshwar Yadav dealt farsa blow on the right arm of Tharu Yadav. Jagdish Yadav using bhala as lathi assaulted Tharu Yadav in his stomach. This witness went on saying that Modanand Yadav asked the accused persons not to indulge in Marpit, then Devendra Jha hit him with farsa. Sarup Yadav hit Sita Ram Yadav on his head. Bahadur Yadav and Yogendra Jha assaulted his father (Sita Ram Yadav) on his head. The accused persons are also said to have thrown brickbats. Actual assault on Thani Yadav took place on the eastern extremity of bank of a nearby pond. 7. P.W. 3 is substantially corroborated by the informant Modanand Yadav (PW. 11) son of the deceased Tharu Yadav. He at the material time was with his father Tharu Yadav and uncle Sita Ram Yadav in the dalan when his cousin Jageshwar Yadav (PW.3) came to his dalan and informed him what he had seen in the orchard. Modanand sent his father to the or chard. After some time he heard cry of his father and he along with his uncle Sita Ram Yadav went to the Orchard and saw mob of 50 to 60 persons armed with bhala. farsa and lathi. He saw Jagdish Yadav. Ram Charitar Yadav and Ram Narain armed with bhala, Sukhdeo Mishra, Baleshwar Yadav, Sumarit Yadav, Tirpit Yadav, Badri Yadav and Devendra Jha armed with farsa and the remaining accused persons were armed with lathi. He heard altercation between his father Tharu Yadav and Sri Prasad Yadav. Sri Prasad Yadav ordered to kill Tharu and thereupon Tharu Yadav and Sita Ram Yadav tried from the orchard and the accused persons chased them and pelted brickbats on them. According to the evidence of this witness, his father was overtaken in the eastern bank and accused Sukhdeo Mishra inflicted farsa blow on the head of Tharu Yadav from front. Tharu Yadav fell on the ground. Thereafter accused Baleshwar Yadav inflicted farsa blow on his left arm. According to the evidence of this witness, his father was overtaken in the eastern bank and accused Sukhdeo Mishra inflicted farsa blow on the head of Tharu Yadav from front. Tharu Yadav fell on the ground. Thereafter accused Baleshwar Yadav inflicted farsa blow on his left arm. Accused Jagdish Yadav using bhala as lathi inflicted blow on the stomach of Tharu Yadav. 8. Learned trial Judge has only considered the examination in-chief of, these witnesses. There is no reference of their cross-examination. The other witnesses, who had seen the occurrence are Sheo Shankar Jha (PW.4), Mahendra Nr. Jha (PW. 5), Md. Ibrahim Ansari (PW. 6) and Sita. Ram Yadav (PW.10) All of them more or less corroborated the evidence of PW.3 and PW. 11. 9. The First Information Report (Ext. 6) of the incident was lodged at Phulparas Police Station by Modanand Yadav (PW.11) at 8.00 P.M. in the same evening. Tharu Yadav was seriously injured and Sita Ram Yadav received injuries. They were taken on bullock cart to Phulparas Police Station where First Information Report was lodged. Janardan Mishra (PW. 15) the then Officer-in charge of Phulparas Police Station, who had recorded First Information Report had noticed injuries on the person of Modanand Yadav, Sita Ram Yadav and Tharu Yadav and prepared injury report. Tharu Yadav was unconscious. He was sent to Ghoghardiha hospital. The investigation commenced. On the next day i.e. on 6-6-1973 the Investigating Officer received Memo No. 21 dated 6-6-1973 (Ext. -7) sent by the doctor of the State Dispensary, Ghoghardiha. The memo disclosed that the doctor had intimated that Tharu Yadav had expired in the hospital. The dead body of Tharu Yadav was sent for post-mortem examination. The Investigating officer visited the site of incident on 6-6-1973. The main occurrence had taken place on the eastern bank of Government Tank at northern extremity in village Brahmpur. The Tank is adjacent north to Jhanjharpur Phulparas road to the east of place of occurrence, there is parti land and to the east of that parti land there is an orchard of newly planted trees. The Investigating officer also found plucked twings of trees. He found trampling mark in the orchard. He also found huge quantity of blood flown in two streams on the eastern bank of the tank at its northern extremity. The Investigating officer also found plucked twings of trees. He found trampling mark in the orchard. He also found huge quantity of blood flown in two streams on the eastern bank of the tank at its northern extremity. He also found blood/stains in the field of Brahmdeo Jha at a distance of 150 cubits from the blood found on the bank of the tank. 10. The accused persons-appellants in their defence pleaded that they were innocent. The trial Judge noticed that there were three sets of accused persons. One set consisted five persons, namely. Sukhdeo Mishra, Jagdish Mishra, Shyam Mishra, .Lal Mishra and Gulab Mishra. The second set comprised Jugat Lal Yadav, Ishwar Narayan Yadav (since deceased), Krishan Lal Yadav and Jhari Lal Yadav. The 3rd set comprised Jagdish Yadav and 24 others. The defence of first set, namely, Sukhdeo Mishra and others was that they had not participated in the occurrence at all rather they had been partymen of the prosecution party for a long period but they deserted the party and became neutral. Sukhdeo Mishra and others produced some papers indicating that till 1965 they had supported the cause of the prosecution party and subsequent to this case they had litigation with some of the present accused persons and the prosecution witnesses. The second set of accused persons namely. Jugut Lal Yadav and others pleaded that they had not participated in the occurrence and they have been falsely implicated. The 3rd set consisting of Jagdish Yadav and others pleaded that there as hostility between the parties on account of litigation. The case sought to be made out was that on 5-6-1973 at about 4.00 P-M she-buffalo of Sita Ram Yadav and his cosharers grazed Marua crop of accused Sri Prasad Yadav whose son Baleshwer Yadav seized the cattle for impounding and denied to release them on the request of Sitaram Yadav who formed a mob variously armed and came to the house of Sri prasad Yadav and demanded release of she-buffalo and pelted brick-bats, at his house and forcibly took away she-buffaloes. The accused persons examined nine witnesses in support of their case. On 5-6-1973 at 10 P.M. Sri Prasad Yadav had lodged First Information Report (Ext.-C) giving own version of the occurrence. 11. Tharu Yadav was victim of homicide is well proved by Dr. Md. Numan (PW. 17) who at the relevant time was Deputy superintendent. The accused persons examined nine witnesses in support of their case. On 5-6-1973 at 10 P.M. Sri Prasad Yadav had lodged First Information Report (Ext.-C) giving own version of the occurrence. 11. Tharu Yadav was victim of homicide is well proved by Dr. Md. Numan (PW. 17) who at the relevant time was Deputy superintendent. Sadar Hospital, Madhubani. He performed autopsy on the dead body of Tharu Yadav on 76-1973 at 11.30 A.M. and found following injuries on the person of the deceased: (i) Incised injury 3" x 1/2" x scalp deep on the top of the head. (ii) One punctured injury 1" x1/2" x bone deep on the left upper arm. (iii) Incised vertical injury on left iliac crest. 2" x 1" x bone cut about 1". (iv) Multiple abrasions on the left side of shoulder. (v) Abrasion on the left side of abdomen 2" x 1/6". On removing the scalp the collection of blood clots under injury of the head extending up to the occipital region were found. Tissues fracture 4" long of, the skull from the top of the head to the occipital region was found. There was no fracture in the inner table of skull. 12. According to the opinion or the doctor, all the injuries were ante-mortem, Injury Nos. (i) and (iii) were caused by sharp cutting weapons and injury No. (it) was caused by sharp pointed weapon. Injury nos. 4 and 5 were caused by hard and blunt substance like lathi. The doctor opined that the death was caused by shock and haemorrhage between 36 to 48 hours of post-mortem examination. Injury no. (1) was sufficient to cause death in. ordinary course of nature. 13. So far injuries on Sita Ram Yadav are concerned. Dr. Harischandar Bhagat (PW. 14) examined him on 6-6-1973 and found one cut mark on his head and 2 swellings one on his left shoulder and the other on his left thigh. The injuries were caused by farsa and lathi. Modanand Yadav, the informant had two Cut injuries on his ankle. Be was also examined by Dr. Bhagat. So, there is evidence of two injured witnesses. Learned trial Judge states that all the witnesses were cross-examined at great length and their evidence could not be demolished. As stated earlier, the learned Judge has not taken trouble of referring to the answers given by the witnesses in their cross-examination. 14. Be was also examined by Dr. Bhagat. So, there is evidence of two injured witnesses. Learned trial Judge states that all the witnesses were cross-examined at great length and their evidence could not be demolished. As stated earlier, the learned Judge has not taken trouble of referring to the answers given by the witnesses in their cross-examination. 14. It was argued on behalf of the defence before the trial Judge that there was glaring inconsistency between direct evidence and the medical evidence in respect of prosecution story. The witnesses were all inimical interested and partisan witnesses and so according to the well accepted rule of evidence in a criminal case, the criminal court should not act on such evidence unless there is corroboration of material points from independent sources. Learned trial Judge found that there was no inconsistency in the oral and medical evidence. Learned trial Judge was very much influenced with the fact that two of the witnesses had received injuries hence their presence at the place of occurrence was proved beyond doubt. It is true that the evidence of injured witnesses have to be given due weight but it is also well settled that the evidence of injured witnesses also requires scrutiny. More so, when they are interested and related witnesses as in the instant case. 15. Learned trial Judge in para 21 of the Judgment has considered the defence evidence as quoted herein below: "21. D.W. 1 Rashul Ansari and D.W. 8 Md. Suleman have stated that on the date of occurrence at 4 P.M. Sita Ram Yadav Bhola Yadav and Tharu Yadav were getting the Marua crops of Sri Prasad Yadav grazed by 4 heads of she-buffaloes. It has come in their evidence that Baleshwar son of Sri Prasad Yadav arrived there and seized the cattle for taking the same to the cattle pound. Sita Ram Yadav came there and requested Baleshwar Yadav to release the buffaloes. It has come in their evidence that Sita Ram went to his house and came to the house of Sri Prasad Yadav with a mob of 50 persons. They have further stated Modanand Yadav and Jagarnath Yadav assaulted Baleshwar Yadav with lathi, garasa and farsa and other persons of the mob pelted brick-bats and forcibly took away the she-buffaloes. Sri Prasad Yadav lodged the first information report (Ext. They have further stated Modanand Yadav and Jagarnath Yadav assaulted Baleshwar Yadav with lathi, garasa and farsa and other persons of the mob pelted brick-bats and forcibly took away the she-buffaloes. Sri Prasad Yadav lodged the first information report (Ext. C) in respect of the alleged occurrence and the police investigated the case but did not submit charge sheet against any person. No injury report, has been filed to substantiate the injury on the person of Baleshwar Yadav. The Investigating Officer did not find any blood stain on the alleged place of occurrence of the counter case. The Investigating Officer found new leaves in the alleged grazed mania crop of Sri Prasad Yadav which denotes old grazing and falsifies the time of occurrence alleged by Sri Prasad Yadav." The evidence of D.Ws.1 and 8 does not inspire confidence in me. The defence version does not appeal to be true and it is rejected." 16. Learned trial Judge has not given reason for not giving credence to any of the defence witness and simply observed that the defence version does not appear to be true and it is rejected. The fined conclusion of the trial Judge is in para 22 of the Judgment. For convenience sake it is reproduced below: "22. From the evidence on the record surrounding circumstances and probabilities of the case it has been established beyond any doubt that on 5-6-1973 accused Jagdish Yadav. Baleshwar Yadav. Sukhdeo Mishra. Sri Mohan Jha and Buchi Jha were members of an unlawful assembly and in prosecution of the common object of such unlawful assembly they assaulted Tharu Yadav as a result of which Tharu Yadav died. It has been established from the evidence on record that accused Sukhdeo Yadav, Baleshwar Yadav dealt farsa blows to Tharu Yadav, and accused Jagdish Yadav dealt Bhala plow to Tharu Yadav accused Sri Mohan Jha and Buehi Jha dealt lathi blows to Tharu Yadav. It is obvious that accused Jagdish Yadav, Baleshwar Yadav, Sukhdeo Mishra. Sri Mohan Jha and Buchi Jha assaulted Tharu Yadav with an intention to kill him and Tharu Yadav died as result of the injuries. So charge under Sec. 302 read with Sec. 149 of the IPC is made out against these 5 accused persons. There is no evidence to prove that accused Devendra Jha and Bilat Jha assaulted Tharu Yadav. Sri Mohan Jha and Buchi Jha assaulted Tharu Yadav with an intention to kill him and Tharu Yadav died as result of the injuries. So charge under Sec. 302 read with Sec. 149 of the IPC is made out against these 5 accused persons. There is no evidence to prove that accused Devendra Jha and Bilat Jha assaulted Tharu Yadav. So charge under Sec. 302 read with Sec. 149 of the Indian Penal Code is not proved against accused Devendra Jha and Bilat Jha. Charge under Section 302 of the Indian Penal Code against the accused Sukhdeo Mishra, Devendra Jha, Jagdish Yadav, Baleshwar Yadav, Bilat Jha. Buchi Jha and Sri Mohan Jha must fail as there is no clear evidence on the record as to who gave fatal blow to Tharu Yadav". 17. Mr. P.N. Pandey learned senior counsel for the appellants submitted that the evidence of Jageshwar Yadav is inconsistent to the case of the prosecution. In fact he supported the defence case. Learned counsel further contended that it is unbelievable that a mob consisting of 50 to 60 persons be required to deal with three persons. It is contended that the genesis of the occurrence is itself doubtful. One of the witnesses Sheo Shankar Jha (PW. 4) was a teacher. He was examined after eleven days of the occurrence. He is first cousin of PW.5 Mahendra Narayan Jha. He was witness in cases against some of the accused: It would be safe not to rely on the evidence of PW. 4. Learned Counsel for the - appellants attacked the evidence of PW. 5 Mahendra Narayan Jha, Sita Ram Yadav had superficial injury but according to this witness he was assaulted by 12 persons. According to the F.I.R. three persons had participated in the assault. This witness was examined after 7-8 days of the occurrence. His evidence suffers some infirmities as that of Sheo Shankar Jha (PW. 4). 18. According to the First information Report appellant Sukhdeo Mishra (Cr. Appeal No. 274/87) assaulted the deceased on his head by Farsa. Appellant Jagdish Yadav (Cr. Appeal No. 251/ 87) (who is reported to be dead) had assaulted the deceased with bhala on the waist. Appellant Baleshwar (Cr. Appeal No. 251/87) gave farsa blow on the left arm. During trial-different version was given. The evidence is that Sri Mohan Jha (Cr. Appeal No. 249/87) and Buchi Jha (Cr. Appellant Jagdish Yadav (Cr. Appeal No. 251/ 87) (who is reported to be dead) had assaulted the deceased with bhala on the waist. Appellant Baleshwar (Cr. Appeal No. 251/87) gave farsa blow on the left arm. During trial-different version was given. The evidence is that Sri Mohan Jha (Cr. Appeal No. 249/87) and Buchi Jha (Cr. Appeal No. 251/87) assaulted the deceased with lathi. This is version of PWs 3, 4, 5 and 6. Even at trial, PW. 11 named these two appellants as assailant of the deceased. It is submitted that this version was changed to reconcile the medical evidence. Learned counsel for the appellants submitted that according to Dr. Md. Noman (PW. 17) the autopsy surgeon. injury no. (ii) was punctured wound on left upper arm and this injury was alleged to the inflicted by appellant Baleshwar Yadav. There was allegation that appellant Jagdish Yadav assaulted with bhala on the waist but no injury was found on the waist. The allegation against Baleshwar Yadav was that he assaulted with farsa but punctured wound cannot be caused by farsa. Injury no. (iv) was multiple abrasion on the left side of the abdomen. To explain this the witnesses stated that Buchi Jha and Sri Mohan Jha assaulted the deceased with lath. The informant stated that only one below was given to the deceased. Learned counsel for the appellants has argued that in order to explain the multiple injuries allegation was made against Buchi Jha and Sri Mohan Jha. In this connection reliance was placed on A.1.R. 1975 S.C. 17271 in which it has been held that belated attempt to explain the injuries found on the person of the deceased is fundamental defect. Learned counsel has contended that the prosecution witnesses are not honest because they are silent about the counter case. 19. Learned counsel for the appellants has referred to the evidence of D.W. 8 Md. Suleman who is F.I.R. witness and contended that his evidence shows that there was quarrel between the parties. Mr. P.N. Pandey learned Sr. Counsel appearing in Cr. Appeal No. 274 of 1987 on behalf of five convicted persons has brought to our notice the fact that all the five persons of this appeal are of the same family. Their implication was motivated. So far these five accused persons are concerned, they were supporters of Tharu Yadav at one time and then they became neutral. Appeal No. 274 of 1987 on behalf of five convicted persons has brought to our notice the fact that all the five persons of this appeal are of the same family. Their implication was motivated. So far these five accused persons are concerned, they were supporters of Tharu Yadav at one time and then they became neutral. These appellants had no dispute with Tharu Yadav or his family and there was no reason why they would participate in the occurrence. PWs 4. 5 and 6 are inimical to the appellants. Papers were flied to show that the accused persons had supported Tharu Yadav. It is submitted that the age of Appellant Sukhdeo Mishra was assessed at 78 years by the trial court but he appears to be more than 80 years. 20. Mr. K.P. Gupta. learned A.P.P. for the State submitted that the order of conviction was passed on cogent and convincing evidence and the appeals preferred by the appellants-are fit to be dismissed. 21. I have reviewed the evidence on all relevant points and noticed that the allegation that 50 to 60 persons formed an assembly in no time without any adequate reason does not appear to be convincing and the genesis of the occurrence does not appear to be convincing. It is dear from the evidence that there was quarrel between the deceased and some members of the accused party. Suddenly there was marpit it is difficult to say the exact cause of the unfortunate incident. A counter case was lodged on the same day by the accused persons giving different version of the occurrence. The Trial Court has not accepted the defence version but to me it appears that the genesis of the occurrence as deposed by the prosecution witnesses is not convincing and at least it can be said that it would not be safe to rely on the evidence of the prosecution witnesses in view of the infirmities highlighted by the learned counsel for the appellants. The occurrence had taken place 25 years ago. Some of the accused persons are dead. There is no independent witness to corroborate the prosecution story. Several witnesses were examined in support of the defence case. The contradictions in the fardbeyan and evidence in court is also significant factor in favour of the accused persons. The occurrence had taken place 25 years ago. Some of the accused persons are dead. There is no independent witness to corroborate the prosecution story. Several witnesses were examined in support of the defence case. The contradictions in the fardbeyan and evidence in court is also significant factor in favour of the accused persons. It goes without saying that majority of the accused persons have been implicated due to enmity with the prosecution party or for some other reason. The witnesses have singled out seven persons on whom specific overt act has been attributed the evidence of the witnesses is not of umblemished character and the accused cannot be held guilty for serious charges like murder. There appears to be some truth in the defence argument. The genesis of the occurrence has not been established. Other infirmities are also noticed. 22. In the result after giving my anxious consideration to the case. I think it is a good case for giving benefit of doubt to the accused persons who suffered prosecution for 25 years. I am conscious of the fact that the prosecution case may be true but it cannot be said that it must be true. The evidence is not very clear and convincing. The trial court has not cared to test the testimony of the eye-witnesses. He has gone by the statement of the witnesses in examination-in-chief. 23. For the reasons stated above. I am constrained to differ from the trial court and acquit the appellants by giving them benefit of doubt. Accordingly all the three appeals are allowed and the conviction of the appellants is set aside. Appellant No.2 Baleshwar Yadav of Cr. Appeal No. 251 of 1987 is in custody. He shall be released forthwith if not required in any other case. The remaining appellants of the three appeals are on bail. They are discharged from the liability of their bail bonds.