Judgment R.N.SAHAY and D.P.S.CHOUDHARY JJ. 1. All the five appellants have preferred this appeal against the judgment and order dated 18th day of December, 1986, passed by the 2nd Additional Sessions Judge, Gopalganj in Sessions Trial No. 247/83/103/84 convicting each of them under Section 302 read with Section 149 of the Indian Penal Code and sentenced to undergo life imprisonment. The appellants Moti Lal Yadav, Shayam Lal Yadav and Mohan Sah have been further convicted under Section 448 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months each. The sentences are to run concurrently. 2. The prosecution case, as summarised in paragraph 1 of the judgment of the trial Court. In brief is that there is a Math known as Bishunpura Math at Bishunpura, P.S.Barauli, District-Gopalganj. It has landed property and its previous Mahanth was Indradeo Das. After his death, his Chella Paspat Das became the Mahanth of the Math. After his death, a dispute arose regarding the Mahanthship of the Math. About 3 months before the alleged date of ocurrence, i.e. 15-3-1991, Chandra Bhushan Bhagat (deceased) was declared and made Mahanth against the claim of Shesh Nath Bhagat by the Bihar State Religious Trust Board. Against this, appellant Shesh Nath Bhagat and others filed case in the Court which was pending. It is further case of the prosecution that on 15-3-1981 at about 5.30 p.m. Mahanth Chandra Bhushan Bhagat along with the Informant Dinesh Prasad (PW-3) was returning to the Math from the mango orchard, and when they reached the road west to the Khalihan of the Math, they saw all the 14 accused-persons who were put on trial along with one Rama Nand Yadav (not sent up for trial) and some other persons coming towards them. The appellant Shesh Nath Bhagat was armed with a dagger and rest of them with lathi, brick-bats etc. Appellant Shesh Nath Bhagat and others ordered to kill Mahanth Chandra Bhushan and the informant began to flee out of fear. Accused-persons forcibly entered into the house of one Anirudh Ojha (PW-5) and pelted stones and brick-bats. They also broke open the door of Anirudh Ojha and searched for the Mahanth. The accused-persons also caused injuries to the inmates of the house of Anirudh Ojha with lathi and brick-bats. When they did not find out the Mahanth in the house then they surrounded the house of Rajeshwar Prasad Srivastava. They also broke open the door of Anirudh Ojha and searched for the Mahanth. The accused-persons also caused injuries to the inmates of the house of Anirudh Ojha with lathi and brick-bats. When they did not find out the Mahanth in the house then they surrounded the house of Rajeshwar Prasad Srivastava. The appellants Moti Lal, Shyam Lal and Mohan Sah entered inside the house after scaling compound wall as the main door was closed from inside. Accused Moti Lal and others opened the main door of the house. Thereafter, other accused-persons entered inside the house and caught hold of Mahanth Chandra Bhushan. The Informant protested on which accused Shesh Nath Bhagat attempted to give a dagger blow to him which hit on his left elbow. Appellant Sheopujan Yadav gave lathi blow and other slapped the Informant. Appellants Sheopujan Yadav and Getha tied a rope on the waist of Chandra Bhushan Mahanth and dragged and assaulted him and brought to the field of Sheoji. They threw the Mahanth on the ground, kept a brick beneath his head and began to assault him on his head and other parts of the body with brick. When they knew that Mahanth is dead all of them fled away. It is alleged that several local persons including Anirudh Ojha and his family members witnessed the occurence. The motive of the murder alleged was the dispute of Mahanthship of Bishunpura Math. The decision of Bihar State Religious Trust Board in favour of the deceased Mahanth had caused annoyance to the appellants. On the same day at 9 a.m., the fardbeyan of the informant Dinesh Prasad (PW-3) was recorded before the Officer Incharge Barauli P.S. at village Bishnupura. The fardbeyan is marked Ext. 4. On the basis of fardbeyan, at the Police Station, the formal FIR was drawn up (Ext. 7). The case was investigated by the Officer-in-charge, Baruli P.S., Digambar Jha (PW-11). The dead body was sent for post-mortem examination and other injured were refered by the Investigating Officer to the hospital for their medical examination. The charge-sheet was originally submitted against 14 accused-persons who faced the trial but the learned trial Court acquitted 9 accused-persons and only 5 of them have been convicted as mentioned above. 3. The dead body was sent for post-mortem examination and other injured were refered by the Investigating Officer to the hospital for their medical examination. The charge-sheet was originally submitted against 14 accused-persons who faced the trial but the learned trial Court acquitted 9 accused-persons and only 5 of them have been convicted as mentioned above. 3. From the trend of cross-examination and the statement made under Section 313 of the Code of Criminal Procedure of the accused-persons, the defence case emerges out as that they have been falsely implicated because of enmity. It is further case of appellant Shesh Nath Bhagat that on the alleged date of occurrence i.e. 15-3-1981 at about 5 p.m. while he was returning from Dhamal and reached a tobacco field in the east of Math Khalihan, Informant Dinesh Prasad and others including Mahanth Chandra Bhushan, who were armed with bhala, lathi surrounded him. On the order of Chandra Bhushan Bhagat to kill, he was assaulted with bhala and lathi severely by them. He had several injuries on his person. For this offence Barauli P.S. case No. 29(3)81 was registered. In order to save from this case, the present case has been falsely instituted. The defence has brought on record the fardbeyan of this case (Ext. A), the FIR (Ext. B) and also examined Dr. Dharmdeo Narain (DW-1) who examined the appellant Shesh Nath Bhagat and proved the injury report (Ext. D). It is also the case of the defence that it is the Informant who is instrumental in instituting this false case against the appellants. He has previous enmity with the appellants and in support of this the defence produced several documents including the complaint petition (Exts. F to F/3) and formal FIR of Barauli P.S. case No. 11(12)79 (Ext.8/1). 4. The learned appellant lawyer submitted that out of 11 PWs. examined on behalf of the prosecution only three including informant Dinesh Prasad PW-4, (Panmati Devi) and her husband PW-6 (Radha Kishun Ojha) are the eye-witnesses of the alleged occurrence. The learned trials Court has disbelieved the major part of the evidence of these PWs and acquitted 9 accused-persons. Therefore, on the same evidence the trial Court was not justified in convicting the remaining 5 appellants. The learned trials Court has disbelieved the major part of the evidence of these PWs and acquitted 9 accused-persons. Therefore, on the same evidence the trial Court was not justified in convicting the remaining 5 appellants. The learned lawyer relied on paragraph 25 of the judgment of the trial Court and stated that after analysing the evidence the Court has come to the conclusion that prosecution has failed to prove that other 9 accused-persons were members of an unlawful assembly, the common object of which was to kill the deceased. If the presence of 9 accused-persons became doubtful in the mob consisting of 14 accused-persons, the remaining part of the prosecution case also becomes doubtful and the appellants are entitled to the benefit of doubt. 5. The learned appellant lawyer submitted that large number of documents produced on behalf of the defence show that there was enmity between the parties and litigations were going on from before particularly with the Informant. Appellant Shesh Nath Bhagat had also filed a title suit relating to dispute of Mahanthship bearing Title Suit No. 141 of 1980 against the deceased Chandra Bhushan Bhagat, which was still pending on the date of occurrence. In view of this admitted enmity between the parties, the evidence of PWs are to be scrutinised with care and caution and they must be supported from the evidence of independent witnesses. The prosecution has failed to explain the injuries as many as 22 in numbers on the person of appellant Shesh Nath Bhagat, for which Barauli P.S. case No. 29(3)81 was registered. All the PWs. including the Informant denied that they have any knowledge of the injuries on the person of the appellant Shesh Nath Bhagat. The evidence of DW-1 (Dr. Dharmdeo Narain) and the injury report (Ext. D) and Entries No. 256, 261, 262, 264, 271, 284 and 285 of Station Diary of 1981 of Baruli P.S. have been exhibited that in order to prove that assault to accused Shesh Nath Bhagat was reported to Barauli P.S. by the Chowkidar in the same night and subsequently the fardbeyan by Shesh Nath Bhagat was recorded. D) and Entries No. 256, 261, 262, 264, 271, 284 and 285 of Station Diary of 1981 of Baruli P.S. have been exhibited that in order to prove that assault to accused Shesh Nath Bhagat was reported to Barauli P.S. by the Chowkidar in the same night and subsequently the fardbeyan by Shesh Nath Bhagat was recorded. This shows that the appellant received injury in the same course of occurrence but prosecution and PWs have purposely denied the injuries on the apellant Shesh Nath Bhagat, This leads to the conclusion that the prosecution has not come with clean hands and PWs are speaking a lie. 6. It was further contended on behalf of the prosecution that PW-7 (Dr. Indranand Jha) who held the post-mortem examination on the dead body of deceased Chandra Bhushan Bhagat on 16-3-81 at 3 p.m. found the following ante-mortem injuries : (i) Multiple bruises over the back and front of the body. (ii) Penetrating wound on parietal region. On dissection, the doctor found blood clot in the parietal to be of brain substance. In the opinion of the doctor injury No. (i) was possibly by brick bat and injury No. (ii) was caused by sharp and pointed weapon, such as knife. The doctor further opined that Injury No. (ii) was sufficient to cause death in ordinary course of nature. The post-mortem report and the evidence of the doctor is inconsistent with the prosecution case and the evidence of PWs. including the Informant. The deceased was mudered by assaulting with brick and brick-bats. It is not the case of the prosecution nor the evidence of any of the PWs that he was given knife blow. This suggests that none of the PWs are eye-witness of the alleged occurrence, otherwise there was no occasion of such vital contradiction in their evidence and the post-mortem report. In the circumstances, the prosecution case becomes doubtful. 7 It is further submitted on behalf of the appellants that all the three eye-witnesses are interested and they have previous enmity with the appellents as is clear from the numerous documents filed on behalf of the appellants as mentioned in paragraph 5 of the judgment of the trial Court. The appellants had admitted enmity both with the deceased and the Informant and the witnesses including Anirudh Ojha (PW-5). Their evidence have not been corroborated by any Independent witness of the locality. The appellants had admitted enmity both with the deceased and the Informant and the witnesses including Anirudh Ojha (PW-5). Their evidence have not been corroborated by any Independent witness of the locality. As such the conviction based on such evidence is not sustainable. It was also submitted on behalf of the appellants that PW-11 Digamber Jha is the Investigating Officer, who stated that the house of Rajeshwar Prasad Srivastav was at a distance of 100 yards from the house of Radha Kishun Ojha. As per the prosecution case the deceased Mahanth and the Informant fled away and hid themselves in the house of Rajeshwar Prasad Srivastav. The appellants were chasing them. There was open field and the house of Rajeshwar Prasad was visible. In the circumsances there was no occasion for the appellants to enter inside the house of Radha Kishun Ojha is search of the deceased and the Informant. The prosecution has purposely introduced this story in order to explain some of the injuries found on the family members of Radha Kishun Ojha. It is the case of the defence that appellant Shesh Nath Bhagat was assaulted at the hands of the Informant and there was an exchange of brickbats from both sides and there was case and counter-case. It is possible that some of the family members of Radha Kishun Ojha might have received some minor injuries, but to conceal the factum of counter-case the prosecution has introduced this part of story. From the evidence of the Investigating Officer, it is further clear that dead body of Mahanth was lying at a distance of about 150 vards from the house of Rajeshwar Prasad Srivastav. In his evidence, the Informant Dinesh Prasad (PW-3) has stated that the at the time of alleged murder he was hiding himself in a room in the house of Rajeshwar Prasad Srivastav. Therefore, it was not possible for him to witness the murder of Mahanth. Similar is the case with PWs 4 and 6 who could have seen the occurrence of murder. PW-5 (Anurudh Ojha) who is son of Radha Kishun Ojha (PW-6) stated that he had not seen the occurrence. Therefore, he was declared hostile by the prosecution. The son of PW-6 is very competent witness on the alleged point of occurrence, which occurred in his house as alleged by the prosecution. PW-5 (Anurudh Ojha) who is son of Radha Kishun Ojha (PW-6) stated that he had not seen the occurrence. Therefore, he was declared hostile by the prosecution. The son of PW-6 is very competent witness on the alleged point of occurrence, which occurred in his house as alleged by the prosecution. It is the case of the prosecution that PWs 3, 4, and 6 received injuries at the hands of the appellants by means of lathi and brick bat. Dr. Dharmdeo Narain (PW-10) stated in the Court that in absence of injury report he is not in a position to say whethere he has examined these injured or not. The injury reports have not been brought on record. As such, this part of the prosecution case has not been corroborated by the medical evidence, which creates doubt about veracity of the prosecution version. PW-9 (Shivkanti Devi) is mother of Rajeshwar Prasad Srivastav (PW-8) but she also did not support the prosecution case and she was declared hostile by the prosecution. Both PWs. 5 and 9 have not supported the occurrence as an eye witness before the Police. 8. It was further submitted on behalf of the appellants that in paragraph 17 the learned trial Court has come to the conclusion that as admitted by PWs-3, 4 an 6 they were not present at the place of assault. At that time PW-3 was at the darwaza of Rajeshwar Prasad Srivastav (PW-8) PWs-4 and 6 were at their own darwaja which according to the Investigating Officer is about 100 yards from the place of occurrence. 9. The learned A.P.P. submitted that the trial Court appreciated and critically examined the evidence on record and has acquitted 9 accused-persons and convicted the five appellants. Valid reason has been given in the judgment for convicting the appellants on the same evidence. It is no ground that if the trial Court has acquitted 9 accused-persons the appellants should also be given benefit of doubt. The case of every accused is to be scrutinised on the evidence on record. Valid reason has been given in the judgment for convicting the appellants on the same evidence. It is no ground that if the trial Court has acquitted 9 accused-persons the appellants should also be given benefit of doubt. The case of every accused is to be scrutinised on the evidence on record. The learned A.P.P. relied upon a decision of the Supreme Court in the case of Harbhajan Singh V/s. State of Punjab, 1997 SCC (Cr.) page 706 : 1997 (2) East Cr C 65 (SC), where the apex Court held that the trial Court acquitting the two co-accused and convicting the appellant under Section 302, IPC held that the two Courts have held that evidence of eye-witnesses were trustworthy and stood corroborated by medical evidence and report of ballistic expert. Merely because the co-accused were acquitted, giving them the benefit of doubt, because of certain infirmities in the evidence, the appellant cannot claim that he was also entitled to the benefit of doubt and accordingly the order of Court below was confirmed. In paragraph 23 of the judgment, the trial Court has summarised the reasons for convicting the appellants and in paragraphs 25 and 26 have assigned reasons for acquitting 9 accused-persons and convicting the five appellants. The trial Court has scrutinised the evidence of eye-witnesses including the Informant and came to the conclusion that they are reliable and trustworthy. 10. PWs 3, 4 and 6 were also assaulted at the hands of the appellants and other accused-persons and injuries were caused to them. Unfortunately, the injury report could not be brought on record, therefore, the doctor who examined these injured, Dr. Dharmdeo Narain PW-10 could not testify injuries found by him on them in the Court. But they had injuries finds corroboration from the evidence of Investigating Officer PW-11 who has issued wound certificate and referred them to the hospital for medical examination. These certificates are Exts. 11 to 11/3. The Supreme Court in a decision in the case of Gurnek Singh and another V/s. State of Punjab, AIR 1988 SC page 2249, held that death caused by fire arm injury, deceased father, brother and mother who were with him also received pillet injuries, the conviction based on the injured eye-witnesses held legal. These certificates are Exts. 11 to 11/3. The Supreme Court in a decision in the case of Gurnek Singh and another V/s. State of Punjab, AIR 1988 SC page 2249, held that death caused by fire arm injury, deceased father, brother and mother who were with him also received pillet injuries, the conviction based on the injured eye-witnesses held legal. Therefore, the evidence of PWs 3, 4 and 6 who received injuries in the same transaction are most competent witnesses on the point of occurrence and there is no reason to disbelieve them. 11. The learned A.P.P. further submitted that evidence of DW-1 (Dr. Dharmdeo Narain) and the injury report (Ext. D) show that appellant Shesh Nath Bhagat was injured and he was examined by the Doctor on 15-3-1981 at 10.30 p.m.. It is true that prosecution has not explained this injury, but the doctor has opined that all the injuries on the person of Shesh Nath Bhagat were simple in nature except one injury which was swelling 2 1/2" x 1/2" on the back and lateral side of left hand with bruise 1" x 1/2" into the lateral side of left hand. The opinion regarding this injury was kept reserved. As such prosecution was not bound to explain these simple injuries found on the person of appellant Shesh Nath Bhagat. The Supreme Court in a decision in the case of Gajendra Singh V/s. The State of U.P., AIR 1975 SC 1703 , held that while appreciating the evidence in a criminal case if the prosecution failed to explain injuries on the person of the accused, it did not affect the prosecution case at all. He also relied upon a decision in the case of Arvind Kumar Singh and another V/s. The State of Bihar, 1991 (1) PLJR Page 292, in which it has been held that if in the FIR the prosecution has not mentioned injuries to accused, it does not necessarily justify a finding that the origin and genesis of the occurrence have been concealed if testimony of prosecution is cogent and unshaken by cross-exaination before the trial Court. 12. The learned A.P.P. submitted that the Informant Dinesh Prasad PW-3 has been cross-examined at length but he has not been assailed on the point of occurrence. 12. The learned A.P.P. submitted that the Informant Dinesh Prasad PW-3 has been cross-examined at length but he has not been assailed on the point of occurrence. He stated that the appellants and other accused-persons had taken the deceased from the house of Rajeshwar Prasad Srivastava dragging and assaulting to the field of Sheoji where the deceased was assaulted and killed. Only because he is named as one of the accused, in the case brought by appellant Shesh Nath Bhagat by the occurrence of the same day, his testimony is not to be discarded. His evidence finds full corroboration from the evidence of PW-4 (Panmati Devi) who is wife of Radha Kishun Ojha who had seen the occurrence from her house. She has named the accused-persons who forcibly entered into her house and caused injury to her and her husband and daughter-in-law. She has seen the accused-persons dragging the deceased from the house of Rajeshwar Prasad Srivastava to the field of Sheoji where he was killed. PW-6 (her husband) Radha Kishun Ojha who deposed as an eye-witness named all the accused pesons who have dragged the deceased and killed him in the field of Sheoji Singh. The Investigating Officer PW-11 has found the blood mark in the field of Sheoji Singh, which supports the ocular evidence. It was further submitted by the learned A.P.P. that there is no inconsistency in the evidence of the witnesses and the post-mortem report. There were several accused-persons who surrounded the deceased in the field and they were assaulting him brutally. The witnesses had seen the occurrence from some distance. Therefore, it was not possible for them to say which of the accused assaulted the deceased by which weapon. They have named the accused-persons with the arms they were in possession. They have stated that appellant Shesh Nath Bhagat was armed with chaku and others were armed with brick and lathi. The doctor PW-10 has found multiple bruises over the back and front of the body of the deceased besides a penetrating wound on parietal region. This leads to the conclusion that appellant Shesh Nath Bhagat caused this penetrating wound by means of dagger in his possession and other injuries were caused to the deceased by other appellants who were armed with brick and lathi. Therefore, the evidence of the doctor and the post-mortem report are consistent with the evidence of the eye-witnesses. 13. This leads to the conclusion that appellant Shesh Nath Bhagat caused this penetrating wound by means of dagger in his possession and other injuries were caused to the deceased by other appellants who were armed with brick and lathi. Therefore, the evidence of the doctor and the post-mortem report are consistent with the evidence of the eye-witnesses. 13. I have carefully scrutinised the evidence on record and considered the submissions made on behalf of both sides. In the FIR, it is mentioned that the deceased was done to death by means of brick and brick-bats. It is not mentioned that appellant Shesh Nath Bhagat who is said to be armed with dagger, inflicted any injury to the deceased. In their evidence, PWs 3, 4 and 6, who are eye-witnesses have not stated that Shesh Nath Bhagat gave any dagger blow to the deceased. As stated above, Dr.Indra Nand Jha PW-10 who held post-mortem has stated that deceased had penetrating wound on parietal region and in his opinion this injury was sufficient to cause death in ordinary course of nature. Therefore, none of the eye-witnesses have stated that appellant Shesh Nath Bhagat or any of the appellant gave dagger blow to the deceased. A careful scrutiny of the evidence of these eye-witnesses leads to the conclusion that their evidence as eye-witness are doubtful. PW-4 in his examination-in-chief has named all the accused-persons but in her cross-examination, she stated that except accused Shesh Nath Bhagat she did not know the accused-persons from before. In paragraph 3 of her evidence she admitted that which of the accused assaulted the deceased in what manner, she could not see. It has also come in her evidence that her house is situated at a distance of more than 100 yards from the place of occurrence and there are houses of different persons in between. In paragraph 16, she further stated that she has locked the door of her house when the accused-persons left her house. In paragraph 22, she categorically admitted that except dragging deceased Chandra Bhushan Bhagat by the accused, she has not seen any other part of the occurrence. As such it is not safe to rely on her as an eye-witness of the alleged occurrence. 14. PW-6 (Radha Kishun Ojha) is husband of PW-4. In paragraph 22, she categorically admitted that except dragging deceased Chandra Bhushan Bhagat by the accused, she has not seen any other part of the occurrence. As such it is not safe to rely on her as an eye-witness of the alleged occurrence. 14. PW-6 (Radha Kishun Ojha) is husband of PW-4. In paragraph 7 of his evidence, he stated that he has not seen which of the accused assaulted the deceased in what manner. He admitted that at the time of the occurrence he was at his house and did not go near the place of occurrence. In the night, he heard in the village that Chandra Bhushan Bhagat has died. In paragraph 15 he further admitted that on the date of occurrence, he was ill and remained in his house all along. He was suffering from fever. He further admitted in paragraph 19 that at the time of occurrence of assault to the deceased it was dark. In paragraph 23, he stated that the house of Rajcshwar Prasad is situated in east-north cornor of his house. There are houses in between. Therefore, it was not possible for this witness to see the occurrence of dragging and assaulting the deceased from the house Rajeshwar Prasad Srivastava to the field of Sheoji, more so, when it has already become dark. PW-4 has admitted that her husband PW-6 was a cook in the Mathia during the life time of late Mahanth Paspat Nath. Considering his evidence carefully, I arn of the view that it is not safe to rely his evidence as an eye-witness. 15. PW-3 (Dinesh Prasad) who is the Informant is an interested witness and he has enmity with the appellants, particularly Shesh Nath Bhagat. Several documents filed on behalf of the appellants as referred to above show that cases are pending in between them. In paragraph 55 of his evidence, he admitted that late Mahanth Paspat Nath has instituted a Title Suit against him for the land of the Math. In paragraph 45 of his evidence, he stated that at the time of assault of Chandra Bhushan Bhagat in the field, he was standing at the verandah of Rajeshwar Prasad Srivastav, which is at a distance of about one bigha. He further admitted that he had closed the door of the room at the time of occurrence. In paragraph 45 of his evidence, he stated that at the time of assault of Chandra Bhushan Bhagat in the field, he was standing at the verandah of Rajeshwar Prasad Srivastav, which is at a distance of about one bigha. He further admitted that he had closed the door of the room at the time of occurrence. A careful scrutiny of the evidence of the Informant shows that his evidence is not wholly reliable and it is without corroboration by an independent witness and as such it is not safe to rely on his evidence. It is surprising that the family members of Rajeshwar Prasad Srivastava from where the deceased was dragged, have not supported the occurrence. Rajeshwar Prasad Srivastava has been examined as PW-8, who is only a witness on the seizure list and not on the point of occurrence. PW-9 (Shiv Kanti Devi) is the mother of Rajeshwar Prasad PW-8. It is the case of the prosecution that she was present in the house at the time of occurrence which took place in her house but she has not supported the occurrence and she was declared hostile by the prosecution. PW-5 (Anirudh Ojha) is son of Radha Kishun Ojha PW-6 but did not support the prosecution case and he was also declared hostile by the prosecution. Thus, the prosecution has miserably failed to substantiate its case on the eye-witnesses have not been found to be truthful. 16. I find substance in this contention of the learned appellant lawyer that the prosecution has tried to supress the injuries on the accused-persons. All the PWs including the Informant denied that they have any knowledge about the injuries on the person of appellant Shesh Nath Bhagat. The Investigating Officer, Digambar Jha, PW-11 has stated that he found injuries on the person of appellant Shesh Nath Bhagat and he referred him for medical examination. He also stated that there was a counter-case bearing Barauli P.S. Case No. 29(3)81 instituted by appellant Shesh Nath Bhagat against the Informant and others. The defence has brought on record the said FIR (Ext. F). DW-1 (Dr. Dharmdeo Narain) who was also examined as PW-10 has examined Shesh Nath Bhagat on 15-3-1981 at 10.30 p.m. and found as many as 20 injuries on his person, some of the - injuries were incised wound caused by sharp-pointed weapon, such as bhala. The defence has brought on record the said FIR (Ext. F). DW-1 (Dr. Dharmdeo Narain) who was also examined as PW-10 has examined Shesh Nath Bhagat on 15-3-1981 at 10.30 p.m. and found as many as 20 injuries on his person, some of the - injuries were incised wound caused by sharp-pointed weapon, such as bhala. In the opinion of the doctor, age of the injury was within six hours at the time of examination. His injury report has been marked Ext. D. In a decision of Arvind Kumar Singh V/s. The State of Bihar, reported in 1991 (1) PLJR page 292, it has been held by this Court that non-explanation on the injuries sustained by the accused about the time of occurrence, the Court may infer that prosecution has suppressed the genesis and origin of the occurrence and the PWs are unreliable since they are lying on most of the material points and denying the knowledge about the injuries sustained to the accused-persons. It has been further held that failure to explain how accused got injuries may be sufficient to demolish the prosecution case. I have already come to the conclusion that the evidence of eye-witnesses are not credible and there is no positive evidence to support the prosecution case. Under such circumstances non-explanation of the injuries on the accused is sufficient to demolish the prosecution case. The decision relied upon on behalf of the learned A.P.P. In the case of Gajendra Singh V/s. State of U.P., AIR 1975 SC page 1703, has a different fact. There the defence version was that the injuries on the accused was not at all proved nor was even improbable, but it the present case, the defence has proved that appellant Shesh Nath Bhagat has several injuries on his person but it has been categorically denied by the prosecution and the witnesses. I also find substance in this contention of the learned appellant lawyer that though PWs 3, 4 and 6 have stated that they received injuries at the hands of the appellants but there is no evidence on record to substantiate this contention. Dr. Dharmdeo Narain PW-10 has not stated that he examined these PWs nor any injury report has been brought on record. Their evidences thus remains uncorroborated by the medical evidence. Dr. Dharmdeo Narain PW-10 has not stated that he examined these PWs nor any injury report has been brought on record. Their evidences thus remains uncorroborated by the medical evidence. After considering the variance in their testimony, it is apparent that these witnesses could not be an eye-witness to the occurrence. Inconsistency in their evidence creates considerable doubts about the truthfulness of the testimony of these witnesses. In the circumstances, the appellants are entitled to the benefit of doubt. Reliance is placed on the decision of Bankan Ram and others V/s. State of Bihar, 1999 (1) BLJ 498, where it has been held that if there is considerable variance and inconsistency in their testimony, it is not safe to base a conviction. 17. In view of these infirmities, I am constrained to differ with the finding of the learned Addl. Sessions Judge, who has convicted the appellants and I come to the conclusion that the appellants are entitled to the benefit of doubt. Accordingly, the appeal is allowed and the conviction of the appellants is set aside. They are acquitted of the charges and are discharged from the liability of their bail-bonds. 18. I agree.