Judgment R.N.Sahay, J. 1. In the morning of 19-4-1983, Bhola Yadav of Village Goshpur in the District of Chatra was brutally murdered at some distance away from his khalihan. Out of 23 persons named by the complainant Pad am Mahto, father of the deceased, only 11 persons were charged-sheeted after investigation and in trial two were acquitted and nine persons were convicted, who are appellants before us. Incidentally, I, as a Sessions Judge, Hazaribagh had framed charges and recorded part of the evidence. 2. Deceased Bhola Yadav used to do business at Calcutta and he had come to village home seven months prior to the occurrence. Some of the accused were also employed at Calcutta. According to the evidence of the mother of the deceased, five of the accused-persons had returned from Calcutta on the same day and before going to their respective homes, committed the diabolical crime. There is no clear evidence regarding enmity and the motive for the murder. The appellants are also residents of Village Goshpur which is the village of the deceased and the prosecution witnesses. 3. According to the prosecution story at about 9 a.m. or 10 a.m. of 19-41983, mother, father, wife and sister-in-law of the deceased were sitting at the darwaja. The deceased was also sitting with them. The appellants along with other accused arrived there armed with lethal weapons. Their object was to assault Bhola Yadav, who in a bid to save his life fled towards khalihan. Bhola Yadav, however, could not save his life since he was apprehended and overpowered by the accused persons near the house of Ramcharan Das. He was brutally assaulted with spade, jarsa, lathi and chhura. The injuries were so massive that, he died on the spot. The accused-persons also assaulted the wife and mother of Bhola Yadav. First Information Report of the occurrence was promptly lodged on the same day at 12.00 noon at Hunterganj Police Station. The distance of Police Station from the PO village is 12 kms. The dead body of the deceased was carried to the Police Station. 4. As there were a number of eyewitnesses to the occurrence and the occurrence had taken place in the morning, learned trial Judge had no difficulty in recording verdict of conviction against these appellants. Learned Additional Sessions Judge sums up his finding in para 20 of his judgment as reproduced below: "20. 4. As there were a number of eyewitnesses to the occurrence and the occurrence had taken place in the morning, learned trial Judge had no difficulty in recording verdict of conviction against these appellants. Learned Additional Sessions Judge sums up his finding in para 20 of his judgment as reproduced below: "20. In view of the facts, circumstances and evidence discussed and observations made in the preceding paragraphs, it was to be held that the prosecution brought home the charges levelled against the accused Karu Mahto, Sarjug Mahto, Chandra Mahto, Parmeshwar Mahto, Jagu Mahto, Kailash Mahto, Lachhu Mahto, Jodhi Mahto, and Butan Mahto beyond all shadows of reasonable doubts. Accordingly, they were found and held guilty and they were convicted under Secs. 302/149 and 323 of the Code and they were all acquitted of the charges under Secs. 448 of the Code and the accused Parmeshwar Mahto, Jagu Mahto, Kailash Mahto, Lachhu Mahto, Jodhi Mahto and Butan Mahto were further found and held guilty and convicted under Sec. 147 of the Code and the accused Karu Mahto, Chandra Mahto and Sarjan Mahto were also convicted under Sec. 148 of the Code. As no witness spoke about involvement of accused Fagu Mahto and only one witness, (PW 1) named the accused Sairu Yadav, both these accused were given benefit of doubt and they were acquitted." 5. All the appellants were convicted under Secs. 302/149, IPC and sentenced to imprisonment for life. The appellants were further convicted under Sec. 323, IPC and sentenced to sixmonths imprisonment each. No separate sentence was awarded under Secs. 147 and 148, IPC. 6. Mr. T.R Bajaj, learned Counsel for the appellants in his forceful argument has attacked the findings of the trial Judge from all comers. Learned Counsel firstly, submitted that the intention of the informant was to implicate as many persons as possible and that is why, he named 23 persons in his fardbeyan. The Investigating Officer found no evidence against 12 persons, who were not charge-sheeted. Chargesheet was submitted against 11 persons. They were tried and two have been acquitted. Learned Counsel submitted that, the evidence of nine witnesses are far from satisfactory. Learned Counsel contended that the learned Additional Sessions Judge relied on divergent version regarding manner of occurrence particularly regarding the persons, who had participated in the assault. Mr. Chargesheet was submitted against 11 persons. They were tried and two have been acquitted. Learned Counsel submitted that, the evidence of nine witnesses are far from satisfactory. Learned Counsel contended that the learned Additional Sessions Judge relied on divergent version regarding manner of occurrence particularly regarding the persons, who had participated in the assault. Mr. Bajaj has argued that, all the eye-witnesses are close relations of the deceased and they being interested witnesses, their evidence ought not to have been readily accepted by the trial Court without corroboration by independent witnesses. Prosecution witness Bhardit Dusadh and Jageshwar Mahto had not supported the version of the eye-witnesses of the occurrence. Kailu Rabidas. (PW9), whose house is in front of the house of the deceased has not stated that, the deceased was overpowered and brutally assaulted. He has also not supported the prosecution case. 7. Mr. Bajaj next submitted that, post-mortem was conducted within 30 hours of the murder. Postmortem Surgeon has clearly stated that the injuries found on the deceased was about 30 hours old which means occurrence had taken place some time during night by some unknown persons and then this case has been lodged after due deliberation. Learned Counsel next submitted that, all the eyewitnesses have stated that, they had followed Bhola Yadav, when he was chased by the accusedpersons but, strangely they have not alleged any specific overt act against any of the appellants. The allegations are of general nature and that all the appellants and the persons against whom chargesheet was not submitted had assaulted the deceased. It is true that a number of injuries have been found on the person of the deceased but, there is no allegation as to which of the appellants had assaulted on what part of the body of the deceased. 8. Learned trial Judge has noticed that, the witnesses have differed from each other as to the weapons carried by the accused-persons with which they had assaulted the deceased and so only inference that can be drawn is that the murder was not committed in presence of any of the eye-witnesses. According to the case in the First Information Report the deceased was also sitting at the darwaja, when the appellants came. The deceased ran towards khalihan but, was caught in front of the house of Ram Chandra Das and then was assaulted. Wife of the deceased has stated otherwise. According to the case in the First Information Report the deceased was also sitting at the darwaja, when the appellants came. The deceased ran towards khalihan but, was caught in front of the house of Ram Chandra Das and then was assaulted. Wife of the deceased has stated otherwise. Her version was that the deceased was at the khalihan, when the appellants had come to their house. In all probability, the deceased might have been murdered by some unknown persons. In the morning, the murder was detected. Learned Counsel submitted that the trial Court was too much influenced by the fact that there were several witnesses of the occurrence but, the trial Judge has not taken pains to scrutinise the evidence in proper perspective. Learned Counsel submitted that, in any view of the matter, the charges have not been established beyond all reasonable doubts and hence, the appellants are entitled to acquittal. 9. The question that arises for consideration is whether the evidence brought by the prosecution is full proof. The evidence is utterly shaky and the trial Court erred in his decision to hold the appellants guilty of the charges. It is therefore, necessary to consider the essential aspects of the evidence in order to come to an appropriate decision. As stated earlier the murder was committed in presence of close relatives of the deceased that too, some distance away at khalihan of the deceased situated in front of this residential house. 10. Parwati Devi widow of the deceased has testified that at 7.00 a.m. she was in her house. Her mother-in-law, father-in-law, sister-in-law and her son were also in the house. Her husband was working in his khalihan. It may be recalled that according to the fardbeyan of the father of the deceased, the deceased Bhola Yadav was also at the danwaja and a mob came variously armed. The khalihan is adjacent to the house of the deceased. Hence, the statement of this witness that her husband was in the khalihan does not militate against the case of the prosecution that the deceased was at his danvaja. This witness has named Karu, (appellant No.9), Jagu, (appellant No.4), Sarjug, (appellant No.8), Kailash (appellant No.2), Chandra, (appellant No.3), Parmeshwar (appellant No. 1), Sailu, (not the appellant). She has not named other appellants. They were armed with knife spade and lathi. This witness has named Karu, (appellant No.9), Jagu, (appellant No.4), Sarjug, (appellant No.8), Kailash (appellant No.2), Chandra, (appellant No.3), Parmeshwar (appellant No. 1), Sailu, (not the appellant). She has not named other appellants. They were armed with knife spade and lathi. The accused-persons named above went to the khalihan and assaulted the deceased. According to the evidence of this witness, entire occurrence took place in the khalihan which was not consistent with the case in the First Information Report. This witness went on the state that, she and her mother-in-law were also assaulted by spade. This is not a case in the fardbeyan. This witness has further stated that Sailu, (since acquitted) was speaking that, her husband be killed. Jagu, Karu and Sailu slashed over the neck of her husband by spade. Other persons are said to be catching hold of Bhola Yadav. Thus, there is specific allegation by this witness against Jagu, Karu and Sarjug. This witness has stated that crowd assembled after the murder of the deceased but, she could not remember all the names. It was stated that the accused-persons were in friendly terms with her husband. In para 17 of her deposition, she has very specifically stated that three of the accused-persons have beheaded her husband. Later part other evidence says that, the occurrence took place not actually in the khalihan but, on a nearby plot. 11. Sakuni, Devi, mother of the deceased Bhola Yadav has named Parmeshwar, Karu, Sarjug, Jagu, Chander, Kailash, Lachhu and Jodhi. Thus, she has named only eight persons, who arrived armed with lethal weapons. Bhola Yadav ran towards north. The accused-persons chased him and overpowered him, and then all of them started assaulting him. He was beheaded by Karu, Sarjug assaulted him with garasa. The occurrence had taken place 100 yards away from their residential house. 12. Kishori Devi, (PW 3) named, Karu, Parmeshwar, Lachhu, Chandar, Kailash, Sarjug, Jagu and Bhajju and others, whom she could not identify. The deceased was dewar of this witness. In para 11 of her deposition this witness stated that the mob consisted altogether 23-24 persons. Karu was armed with garasa, Parmeshwar with chhura, Chandar with farsa, Kailash with spade and others were armed with lathi. She stated that all the accused persons assaulted the deceased. The deceased was dewar of this witness. In para 11 of her deposition this witness stated that the mob consisted altogether 23-24 persons. Karu was armed with garasa, Parmeshwar with chhura, Chandar with farsa, Kailash with spade and others were armed with lathi. She stated that all the accused persons assaulted the deceased. It was stated that, only eight persons participated in the killing of Bhola and the other accused were waiving their lathis. This witness stated that her mother-in-law and Bholas wife were assaulted by the accused-persons. 13. Krishna Yadav, (PW 4) is the nephew of the deceased. At 9.00 a.m., he was grazing his cattle. He saw Karu Yadav, Chandar, Yadav, Parmeshwar Yadav, Sarjug Yadav, Butan Yadav, surrounding Bhola. Chandar was armed with garasa, Parmeshwar with boola, Sarjug and Bhajju with lathis and Karu with spade. All these persons assaulted the deceased near the house of Kaila Rabidas: Bhola fell down. Karu beheaded him with spade. This witness watched the entire occurrence from a distance of 15 ft. 14. Padam Yadav, (PW 10) father of the deceased Bhola Yadav, who is also the informant, stated that, he was in his house at 9.00 a.m. His son was also sitting there. In the meantime, Karu, Jodhi, Chandar, Kailash, Buttan, Parmeshwar, Sarjug and others came. They were armed with bhola, garasa and lathi. They chased Bhola, Bhola ran towards west. The accused-persons killed Bhola near the house of Ram Charan Das. This witness claims to have witnessed the occurrence. 15. Learned trial Judge in para 8 of the judgment has considered the evidence of the informant. Padam Yadav as extracted below: "The informant, (PW 10) supported the prosecution case in its entirety by stating on oath that at the time and place quoted above while he along with other members of his family was sitting in the verandah (darwaja) of his house, all, the accused persons having armed themselves with various lethal weapons such as spade, spear, garasa and lathi and formed an unlawful assembly, went there and they chased the deceased, who in a bad to save his life started running outside towards his khaithan, but, the accused persons overpowered and caught hold of him near the house of Ram Charan Rabidas and they killed the deceased with spade, garasa, spear. It was also in his statement that, the accused assaulted PWs 1 and 2 as well. It was also in his statement that, the accused assaulted PWs 1 and 2 as well. Identical was the evidence of PWs 1, 2, 3 and 4 on the point of doing away with the deceased and also on the point of assault on PWs 1 and 2. PWs 1, 2 and 3 were sitting in the verandah along with PW 10 and the deceased. All the aforesaid witnesses went - to the place where the accused persons murdered the deceased. PW 4 was with his buffalo that, was grazing in the vicinity of the place of occurrence and seeing the accused surrounding the deceased, he rushed there and saw the accused assaulting the deceased, who sustained injuries to which he succumbed at the spot near the house of Kailu Rabidas, (PW 9) son of the aforesaid Ramcharan Rabidas. He also testified to the assault on PWs 1 and 2." 16. There are some other important witnesses of the occurrence, who were not relation of the deceased. Kailu Rabidas was in his house. The occurrence had taken place in front of his house. On hulla, he came out, Bhola asked him for arm. He also saw 3-4 persons murdering Bhola, but, he could not identify them. This witness was declared hostile and in cross examination, he denied that, he had stated before the Police that, he had identified the accused-persons, who had assaulted Bhola. This witness used to work in the house of Padam Yadav. This witness has stated that, the assailants of Bhola were of another village. 17. Bhardu Dusadh, (PW 5) aged about 76 years was taking rest under the neem tree. He was not well. He saw some persons chasing Bhola. One of them assaulted Bhola with spade as a result of which he died. This witness was also declared hostile. He denied that, he named accused-persons before the Police. The assailants were not of his village. This witness says that, he was the first man to reach the place of occurrence and the others came later. This witness had gone to the house of the deceased. This witness stated that, Bhola Yadav had gone to jail in connection with a dacoity case. The dacoity had been committed in the house of Sairu. 18. Dr. This witness says that, he was the first man to reach the place of occurrence and the others came later. This witness had gone to the house of the deceased. This witness stated that, Bhola Yadav had gone to jail in connection with a dacoity case. The dacoity had been committed in the house of Sairu. 18. Dr. Basudeo Mandal, the then Medical Officer, Chatra had held post-mortem examination on the dead body of the deceased and following ante mortem injuries were found on his person: (i) One sharp-cutting wound on upper side just below the mandible 3" x 1" x 1". (ii) One transverse sharp-cutting wound in front of neck just above thyroid 2-1/2" x 1/2" x 2". (iii) One transverse sharp-cutting wound in front of neck 1/2" below the thyroid of size of 3" x 1" x 2". Portion of the oesophagus trachea cut and large quantity of undigested food materials coming out through aperture. (iv) One sharp-cutting wound on the left cheek 1" below the left eye 1-1/2" x 1/2" x 1/2". (v) One sharp-cutting wound on the forehead left side above the left eye of dimension of 3" x 1" x 1/2". (vi) One sharp-cutting wound on the left side of the neck 1" x 1/ 2" x 1". (vii) One oblique sharp-cutting wound on the left parietal region of scalp 2" x 1" x 1/2". (viii) One lacerated wound on left shoulder joint 2-1/2 x 1/2". (ix) One swelling on back of left elbow joint 4" x 3". (x) One sharp-cutting wound on the dorsal surface of the left hand at the base of the middle finger 1/2" x 1/2" x 1/2". (xi) One sharp-cutting injury on the medial side of the right leg 1/2" x 1/2" x 2"x 1. (xii) Fracture of the mandible left side. (xiii) Fracture of the first phalanx of the middle finger of right hand. According to the opinion of the Doctor, injury Nos. (i) to (vii), (x) and (xi) had been caused by sharpcutting weapons such as farsa, chhura and spade and the remaining injuries had been caused by hard and blunt substance such as lathi. Death of the deceased occurred due to the above injuries. 19. According to the opinion of the Doctor, injury Nos. (i) to (vii), (x) and (xi) had been caused by sharpcutting weapons such as farsa, chhura and spade and the remaining injuries had been caused by hard and blunt substance such as lathi. Death of the deceased occurred due to the above injuries. 19. On ultimate analysis of the evidence, following facts emerged: (a) The occurrence had taken place in the morning in the khalihan of the deceased i.e. close to the residential house of the deceased and hence, the Witnesses, who belong to the family of the deceased must have seen the occurrence. The FIR was lodged very promptly. (b) The magnitude of the injury sustained by the deceased indicates that; he had been assaulted by a large number or assailants which to a large extent corroborates the version of the eye-witnesses. (c) The hostile witness have also spoken about the occurrence having taken place at the place and time given by the informant. 20. The prosecution witness Parwati Devi, the widow of the deceased had named, Karu, (appellant No.9), Jaggu, (appellant No.4), Sarjug (appellant No.8), Kailash, (appellant No. 3) and Parmeshwar, (appellant No.1). She had assigned specific role on Jaggu, Karu and Sarjug. Sakuni Devi, mother of the deceased, named, all the accused named by Parwati Devi. In addition, she had mentioned Lachhu and Jodhi. His son was beheaded by Karu. Sarjug assaulted him with garasa. Kishori Devi, (PW 3), sister-in-law of the deceased, named all the five accused named by Parwati Devi, (PW 1), namely, Parmeshwar, Chandra, Kailash, Sarjug and Jaggu. She had also named Lachhu named by her mother-in-law and Bhallu not named either by Parwati Devi or Sakuni Devi. Krishna Yadav, nephew of the deceased had named Karu, Chandar, Parmeshwar and Sarjug. He had also named Butan (not named by any material witness). 21. No doubt, there is some contradiction with regard to the manner of the occurrence. After consideration of the evidence in detail, I have come to the conclusion that the conviction of the appellants Karu, Chandra, Kailash, Parmeshwar and Sarjug is proper and should be confirmed. The conviction of remaining four appellants, namely, Jaggu, Jodhi, Lachhu and Butan cannot be sustained in the evidence of the eyewitnesses with regard to their participation. 22. After consideration of the evidence in detail, I have come to the conclusion that the conviction of the appellants Karu, Chandra, Kailash, Parmeshwar and Sarjug is proper and should be confirmed. The conviction of remaining four appellants, namely, Jaggu, Jodhi, Lachhu and Butan cannot be sustained in the evidence of the eyewitnesses with regard to their participation. 22. In the result, the appeal so far Karu, Chandra, Kailash, Parmeshwar and Sarjug are concerned is dismissed and the appeal of remaining appellants, namely, Jaggu, Jodhi, Lachhu and Butan is allowed by giving them benefit of doubt. The appellants whose conviction is confirmed, are directed to surrender to serve out the remaining sentence. Their bail bonds are cancelled. The appellants whose conviction has been set aside are discharged from their respective bail bonds. D.N.Prasad, J. 23 I agree.