Judgment N.N.Singh, J. 1. Both these appeals arising out of judgment of conviction and sentence dated 11th February, 1986, passed by the IIIrd Additional Sessions Judge, Bhagalpur, in Sessions Trial No. 168 of 1984, are being disposed of by this common judgment. Appellant Ganauri Sah of Criminal Appeal No. 120 of 1986 and appellant Ganapati Sah of Criminal Appeal No. 154 of 1986 have died during the pendency of the appeal and, as such, their appeals stand abated. All the appellants have been convicted under Sections 302/149 of the Indian Penal Code and were sentenced to undergo life imprisonment and to pay a fine of Rs. 500/- and in default to undergo rigorous imprisonment for further period of one year. All the appellants were further convicted under Section 307/149 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for five years with a direction that both the sentences will run concurrently. One Naseer Ansari was acquitted by the Trial Court and accused Sameer Bokhali had died during the pendency of the trial. 2. The brief history of the case is that the Informant, Radha Devi (PW 12), who happens to be daughter of Raghubeer Sah (PW 3) after she became widow, re-married a person of village Harpur. After purchasing three and half decimals of land in village Jhitkiyan, in the village of her father, she constructed a house there, which was by the side of the road intervened by gairmazrua land measuring three decimals through which alone her house was accessable. Radha Devi was using that gairmazrua land for her passage and also for keeping cattle over it and she had filed an application for settlement of that gairmazrua land. The case of prosecution is that accused Chhedi Sah and his brother, Medi Sah had got their land adjacent east of that gairmazrua land and they were also claimant of that land and proceedings under Sections 107 and 144 of the Criminal Procedure Code were started between the parties. Bhola Sah (deceased), the brother of Radha Devi used to run a shop at Amarpur, six miles away. It is alleged that one day prior to the occurrence, that is, on 10. Bhola Sah (deceased), the brother of Radha Devi used to run a shop at Amarpur, six miles away. It is alleged that one day prior to the occurrence, that is, on 10. 08, 83, appellants Chhedi Sah, Medi Sah, Jogendra Sah, Fekan Sah, Ganauri Sah and Shadeo Sah and others stated digging foundation in the gairmazrua land for erecting a wall in the front of the house of Radha Devi, which was objected to by Radha Devi and her father, Raghubeer Sah and brother, Gopal Prasad Sah (PW 10), but the appellants did not pay any heed to it and then Radha Devi sent her son, Subodh (PW 18) to call her brother. Bhola Sah, from Amarpur and on the date of occurrence, Bhola Sah, along with Subodh and Shivnandan Sharma (PW 1), arrived there and asked the appellants not to construct the wall and when they did not listen Bhola Sah, along with Shivnandan Sharma, went to Shahkund Police Station and reported the matter to the Officer-in-Charge, Shahkund Police Station, Ram Parvesh Singh (PW 24), who visited the place of occurrence village Jhitkiyan at 10.00 a.m. and asked the appellants not to proceed with the construction of the wall and he also deputed village chowkidar, Fuleshwar Paswan (PW 20) for maintaining peace there. It was further alleged that after departure of the Sub- Inspector of Police and after taking meal, Bhola Sah, Shivnandan Sharma and Chowkidar, Fuleshwar Paswar departed from the house of Raghubeer Sah and Raghubeer Sah (PW 3), his wife Domini (deceased), Radha Devi (PW 12), her brother, Gopal Prasad Sah (PW 10) also went ahead with them to see them off but when they reached near the mosque in Bokhali Tola, a mob consisting of 18 to 20 persons, including these appellants and others, variously armed with lathi, bhala, garasa, dagger, khanti, kulhari, etc. ran towards Bhola Sah and Bhola Sah in order to save himself entered the house of Mustafa Ansari (PW 22) and took shelter inside one of the rooms of his house. The case of prosecution is that all the appellants entered inside the house of Mustafa Ansari and, meanwhile. Raghubeer Sah, Domini Devi, Radha Devi, Gopal and others also followed them inside the court-yard (Aangan) of the house. The case of prosecution is that all the appellants entered inside the house of Mustafa Ansari and, meanwhile. Raghubeer Sah, Domini Devi, Radha Devi, Gopal and others also followed them inside the court-yard (Aangan) of the house. Meanwhile, appellants Sahdeo Sah, Arjun Sah, Shyam Sundar Sah, Prakash Sah, Bedi Sah, Medi Sah and Jogindra Sah entered the room in which Bhola Sah had taken shelter and started assaulting him by means of axe, dagger etc. as a result of which he sustained serious injuries and his father, Raghubeer Sah, mother, Domini Devi, sister Radha Devi, and other, Gopal was begged for his life were also assaulted and it was alleged that Shivnandan Sharma (PW 1), Fuleshwar Paswan, chowkidar (PW 20) also witnessed the occurrence and that Gopal Sah, along with chowkidar, went to Sajour Outpost to inform about the incident. The Informant, in her fardbeyan (Exhibit 10) alleged that her mother was inflicted bhala injury by Arjun Sah and was assaulted by Prakash Sah and that all the injured were brought to Government Hospital at Sajour, where they were given first aid and Domini succumbed to her injuries there. 3. The fardbeyan of Radha Devi (Informant) was recorded by the Sub-Inspector of Police, Janki Das (PW 27) at Sajour and the same was sent to Shahkund Police Station for instituting a case. On the basis of that fardbeyan, Shahkund P.S. Case No. 72, dated 11.8.1983, was registered under Sections 147, 148, 149, 323, 324, 342, 325, 307 and 302/34 of the Indian Penal Code. At Sajour Dispensary, the injured were given only first aid by Dr. Satyapad Chakravarti (PW 5) the retired medical officer with the help of Compunder, Kishore Prasad Ram (PW 4) and from there, injured Bhola Sah, who was unconscious and injured, Raghubeer Sah (PW 3) and the Informant (PW 12) were sent to Bhagalpur Medical College Hospital for treatment on a Tamtam and dead-body of Domini was also sent to Bhagalpur for post-mortem examination. At Bhagalpur Medical College Hospital, injuries of Bhola Sah, Raghubeer Sah and Radha Devi were examined and injury reports (Exhibits 2 to 2/2) were issued. Bhola Sah, who was still unconscious and serious was forwarded to Patna Medical College Hospital for treatment where on 15th August, 1983, he succumbed to his injuries. His inquest report (Exhibit 8) was prepared there and his post-mortem examination was conducted there by Dr. Bhola Sah, who was still unconscious and serious was forwarded to Patna Medical College Hospital for treatment where on 15th August, 1983, he succumbed to his injuries. His inquest report (Exhibit 8) was prepared there and his post-mortem examination was conducted there by Dr. P.R. Srivastava (PW 28) and his post-mortem report is Exhibit 4/1. The Police, after due investigation, submitted charge-sheet and appellants and others, who after cognizance and commitment, were put on trial and were convicted, as aforesaid. 4. The defence of the appellants, which appears from the suggestions put to PWs, statements of the appellants under Section 313 of the Criminal Procedure Code and the arguments, was that they have been falsely implicated in this case due to enmity and litigation. 5. The prosecution examined altogether thirty witnesses in support of its case out of whom PW 8, Bhagwan Das, PW 11, Jagdish Yadav, PW 15, Garib Yadav, PW 17, Shanti Yadav, and PW 21, Shivnandan Yadav, were tendered for cross-examination. PW 2, chowkidar, Sushil @ Sudeem Paswan and PW 26, Constable, Balmiki Jha, accompanied the dead body of deceased, Domini, from Sajour to Bhagalpur Medical College Hospital for conducting post-mortem examination. PW 5, Dr. Shaktipad Chakravarti, the retired medical officer, and PW 4, Kishore Ram, Compounder, stated to have rendered first aid to all four injured persons at State Dispensary, Sajour. PW 6, Madhav Sah, son-in-law of Raghubeer Sah is a witness on the point of identification of the dead body of deceased, Bhola Sah, at the time of postmortem examination held in Patna Medical College Hospital. Besides them, PW 14, Dashrath Ram, private compounder, PW 23, Md. Ziyaullah, and Sub-Inspector of Police of G.R. Register, PW 25, Jaidev Mishra, Sub-Inspector of Police, PW 29, Sub-Inspector of Police, Jitendra Narain Sharma and PW 30, Ajit Kumar Ghosh, were formal witnesses. PW 19, Dr. Kailash Jha, conducted postmortem examination on the dead body of Domini Devi and proved the post-mortem report (Exhibit 4). PW 28, Dr. P.R. Srivastava, held post-portem examination on the dead-body of Bhola Sah in Patna Medical College and Hospital and proved the post-mortem report (Exhibit 4/1). PW 13 is Dr. N.K. Choudhary, who examined the injuries on the persons of Bhola Sah, Radha Devi and Raghubeer Sah and proved the injury reports (Exhibits 2 to 2/2). PW 28, Dr. P.R. Srivastava, held post-portem examination on the dead-body of Bhola Sah in Patna Medical College and Hospital and proved the post-mortem report (Exhibit 4/1). PW 13 is Dr. N.K. Choudhary, who examined the injuries on the persons of Bhola Sah, Radha Devi and Raghubeer Sah and proved the injury reports (Exhibits 2 to 2/2). PW 27 is Janki Das, the main Investigating Officer, and PW 24 is the Sub-Inspector of Police, Ram Pravesh Singh, who had done part investigation. Remaining witnesses. PW 1, Shivnandan Sharma, PW 3, Raghubeer Sah, PW 7, Bimli Devi, the brothers wife (widow) of the. Informant, PW 9, Savita Devi, also brothers wife of the Informant and wife of PW .10, PW 16, Chunchun Singh, PW 18, Subodh Kumar, son of the Informant, PW 10, Gopal Sah, brother of the Informant, and PW 12, Radha Devi, the Informant claimed to be eye-witnesses and PW 22, Mustafa, in whose house the alleged occurrence took place, was declared hostile by prosecution. 6. The defence also examined by formal witnesses, DW 1, Mahesh Prasad, and DW 2, Uma Kant Prasad, who proved the formal First Information Report (Exhibit D), written report of Sub-Inspector of Police, Ram Laxman Singh (Exhibit E), seizure list (Exhibit F) and complaint petition (Exhibit G) respectively. 7. PW 13, Dr. N.K.Choudhary, stated to have examined Radha Devi (PW 12) on 11.8.1983 at 9.50 p.m. and stated to have found the following injuries on her person : "(1) Abrasion 1/2" x 1/4" on the right knee. (2) Two lacerated wounds 2 1/2" x 1/2" x muscle deep on the back of left head. (3) Tender swelling on left hand. (4) Lacerated wound 2 1/2" x 1/4" x skull deep on left parietal region of the scalp. (5) Lacerated wound 6" x 1/4" scalp deep on the anterior aspect of the scalp." He opined that injury No. (3) was grievous and rest were all caused by hard and blunt substance, such as, lathi or back portion of spade and garasa within six hours and he proved the injury report (Exhibit 2). He also proved the discharge slip (Exhibit 3). On the same day at 9.40 p.m., he stated to have examined deceased, Bhola Sah and to have found the following injuries on his person : "(1) Lacerated wound 1/2" x 1/2" x skull deep on the right side of forehead. He also proved the discharge slip (Exhibit 3). On the same day at 9.40 p.m., he stated to have examined deceased, Bhola Sah and to have found the following injuries on his person : "(1) Lacerated wound 1/2" x 1/2" x skull deep on the right side of forehead. (2) Lacerated wound 1/2" x 1/4" x skull deep on the right side of forehead right side of forehead. (3) Lacerated wound 1" x 1/4" skin deep on the left eyebrow. (4) Lacerated wound 2" x 1 /4" x skin deep on the left eyebrow. (5) Lacerated wound 1" x 1/8" x skin deep on the left upper eye-lid. (6) Lacerated wound 1" x 1/4" x skin deep on the left side of face. (7) Multiple small abrasions on the right side of face and on temporal region. (8) Punctured wound 1/2" x 1/4" x muscle deep and yet another punctured wound of the same size on the right elbow and over inner aspect of upper right forearm. (9) Lacerated wound 1" x 1/8" skin deep on the back of right fore-arm. (10) Compound fracture on right fore-arm. (11) Lacerated wound 1/4" x 1/4" x skin deep on the left ankle. (12) Multiple bruises over right side of chest, glutial region and right thigh." He opined that all the injuries were simple, except injury No. 10, which was a fracture and he furtheuy examined that all the injuries, except injury No. 8, were caused by hard and blunt substance, such as, lathi, blunt portion of spade and blunt portion of garasa and also of pauwa. According to him, injury No. 8 was caused by sharp weapon, may be by bhala. He proved the injury report (Exhibit 2/1). He stated mat since injury No. 1 was on head, the victim must have become unconscious. 8. On the same day at 9.45 p.m., the doctor stated to have examined Raghubeer Sah and to have found the following injuries on his person : "(1) Swelling and tenderness on the lower part of the left fore-arm. (2) Lacerated wound 1" x 1/4" x skin deep on the upper part of fore-arm. (3) Tenderness over chest wall. (4) Swelling of upper part on the right side of the side of the chest 4" x 2". (2) Lacerated wound 1" x 1/4" x skin deep on the upper part of fore-arm. (3) Tenderness over chest wall. (4) Swelling of upper part on the right side of the side of the chest 4" x 2". (5) Lacerated wound 1" x 1/2" x 1/4" x scalp deep on the right side of occipital region." He opined that all injuries, except injury No. 2, were simple and injury No. 1 was grievous and caused by hard and blunt substance, such as, lathi or back portion of garasa. He proved the injury report (Exhibit 2/2). 9. PW 19, Dr. Kailash Jha, stated to have held post-mortem examination on the dead-body of deceased, Domini Devi, at 1.30 p.m. on 12.8.1983 and to have found the following injuries : "(1) Penetrating sharp cut wound 1/2" x 1/10" x left side of chest cavity. Situated on the left side root of neck 1" above mid Clascular point. (2) Sharp cut penetrating wound 1/4" x 1/10" chest cavity on the left shoulder near root of neck 2" x above shoulder joint. (3) Penetrating wound 1/4" x 1/10" x chest cavity just right to the mid line of back 3(1/2)" below neck. (4) Sharp cut penetrating wound 1/4" x 1/10" x chest cavity 3(1/2)" below injury No. 3 and 1" left to mid line of the back. (5) Bruises three in number, each 1" x 1/2" on back at lumber area." He opinous that injury No. 1 was caused by desdie-edged long weapon may be by gupti, whereas injuries Nos. 2, 3 and 4 were caused by some sharp cutting/penetrating long instrument, which may be bhala or gupti and injury No. 5 was caused by hard and blunt substance, such as, lathi or back portion of axe. The doctor opined that injury No. 1, alone, was sufficient to cause death of the victim and cumulative effect of injuries Nos. 1 to 4 were also sufficient to cause death of the victim in ordinary course of nature. He further opined that the death was caused due to shock and haemorrhage within 18 to 24 hours from the time of post-mortem examination and he proved the post-mortem report (Exhibit 4). 10. PW 28, Dr. 1 to 4 were also sufficient to cause death of the victim in ordinary course of nature. He further opined that the death was caused due to shock and haemorrhage within 18 to 24 hours from the time of post-mortem examination and he proved the post-mortem report (Exhibit 4). 10. PW 28, Dr. R.P. Srivastava, a Tutor of Forensic Science Department of Patna Medical College Hospital, stated to have held post-mortem examination on 16th of August, 1983, at 10.30 a.m. on the dead body of deceased, Bhola Sah, and further stated to have found the following ante-mortem injuries on his person : "(1) Surgically stitched wound 1" x 1 /4" x muscle deep on the right fore-arm. (2) Stitched wound 3/4" x 1/4" skin deep above right elbow. (3) Stitched wound 1" x 1/4" x bone deep on the right side of fore-head above eye-brow. (4) Stitched wound 1 (1/2)" x 1/4" x bone deep on the left side of forehead. (5) Two stitched wounds 1/2" x part both 1/2" x 1/4" skin deep on the left eye brow. (6) Stitched wound 3/4"x 1/4"x skin deep below left eye. (7) Multiple partially healed abrasions over the head, both legs, chest and both upper extremities." On dissection, the doctor found blood clots under the scalp on occipital region, linear fracture on right side and depressed fracture on right side of frontal bone underneath injuries Nos. 3 and 4. He could not, however, give any opinion regarding the weapon which might have been used for causing injuries found on the person of deceased, Bhola Sah, due to previous surgical interferance. In his opinion, the time elapsed since death till the post-mortem examination was within 24 hours. He further opined that the cause of death of the deceased was head injuries which were sufficient in the ordinary course of nature to cause death of me deceased. He also proved the postmortem report (Exhibit 4/1). He further opined that the depressed fracture on the right side of frontal bone may be cause by some heavy blunt weapon, like the back side of a spade or pauwa or the cot (Khat). 10-A. There is nothing in cross-examination of aforesaid three doctors, PWs 13, 19 and 28 to disbelieve them. He further opined that the depressed fracture on the right side of frontal bone may be cause by some heavy blunt weapon, like the back side of a spade or pauwa or the cot (Khat). 10-A. There is nothing in cross-examination of aforesaid three doctors, PWs 13, 19 and 28 to disbelieve them. From their evidence, this much is established that Domini Devi and her son, Bhola Sah, died homicidal death and from evidence PW 13 this is established that besides Bhola Sah, Radha Devi (PW 12) and her father, Raghubeer Sah (PW 3) also sustained injuries. So far as injuries found on the person of Radha Devi (PW 12) and Raghubeer Sah (PW 3) are concerned, injury No. 3 on Radha Devi and injury No. 1 on Raghubeer Sah were found to be grievous caused by hard and blunt substance and other injuries were all simple caused by hard and blunt substance. It was submitted that no case under Section 307 of the Indian Penal Code is made out from the injury reports (Exhibits 2 to 2/2) ana at best it makes out a case under Section 325 of the Indian Penal Code only. 11. The learned Trial Court discussed the evidence of eye-witnesses is paragraphs 14, 15 and 16 of its judgment and has held that they fully supported the prosecution case. The learned Counsel for the appellants contended that no independent witness had been examined in this case to support the prosecution version, though the occurrence did take place in day time. It was also submitted that besides two injured, PW 12, the Informant, Radha Devi, and PW 3, her father, Raghubeer Sah, the other witnesses examined on the point of occurrence were all family members of the Informant, that is, PW 7. Bimli Devi, the widow of deceased, Bhola Sah, PW 9, Savita Devi, wife of PW 10, Gopal Sah, PW 18. Subodh Kumar, the son of the Informant, PW 12, and PW 10, Gopal Sah, the brother of the Informant. It was submitted that other witnesses examined on this point were PW 16. Chunchun Singh, PW 20, Fuleshwar Paswan, and PW 22, Mustafa, in whose house the alleged occurrence did take place, did not support the prosecution case regarding the manner of occurrence. It was submitted that other witnesses examined on this point were PW 16. Chunchun Singh, PW 20, Fuleshwar Paswan, and PW 22, Mustafa, in whose house the alleged occurrence did take place, did not support the prosecution case regarding the manner of occurrence. It was also contended that PW 1, Shivnandan Sharma, though claimed to have accompanied deceased, Bhola Sah, gave such a version which did not support the prosecution case fully. The other contention of the learned Counsel for the appellants was that the information given at Sajour Outpost should have been treated as First Information Report and that the fardbeyan (Exhibit 10) of PW 12 was barred under Section 162 of the Criminal Procedure Code. 12. PW 16, Chunchun Singh, stated to have heard hulla and proceeded towards the house of Mustafa and he saw Bhola Sah (deceased) being lifted by appellants Arjun Sah and Jogindra Sah, who left him near the door of Radha Devi. He further stated that others were also with them whom he did not identify. This witness was not declared hostile by prosecution and yet his attention was drawn towards his so-called statement "made before Police, which, according to Section 145 of the Evidence Act, could be used for contradiction only. In paragraph 10 of his cross-examination PW 16 stated that for the first time when he saw Bhola Sah, he saw him being dragged. His this statement is different from what he stated in examination-in-Chief regarding lifting of Bhola Sah. This was a new fact introduced in the prosecution case as in the fardbeyan (Exhibit 10) it was nowhere described that Bhola Sah was lifted or dragged by the appellants from the house of Mustafa to the door of PW 12. PW 20, chowkidar, Fuleshwar Paswan, who was deputed by the Officer-in-charge of Shahpur Police Station at the gairmazrua land, stated that Bhola and one outsider (PW 1) when departed from his house, the members of the family also went along with them to see them off. PW 20, chowkidar, Fuleshwar Paswan, who was deputed by the Officer-in-charge of Shahpur Police Station at the gairmazrua land, stated that Bhola and one outsider (PW 1) when departed from his house, the members of the family also went along with them to see them off. He further stated that after some time, he heard hulla and Gopal Sah (PW 10), brother of Bhola Sah, came to him and stated that his brother was being assaulted and they should go to Outpost and then he, along with Gopal Sah, went to Sajour Outpost where the Sub-Inspector of Police, Janki Babu (PW 27) met them where Gopal Sah (PW 10) reported that Arjun, Sahdeo, Jogendra, Gulabi, Laxman and others assaulting Bhola Sah. He further stated that the Sub-Inspector Police came with them and found Bhola Sah in injured condition and unconscious with bleeding injuries lying near the gairmazrua land, where he (PW 20) was deputed and that in the house of Mustafa (PW 22) father, mother and sister of Bhola Sah were injured. This witness stated not to have seen any occurrence near the mosque and, as such, he was declared hostile and his attention was drawn towards the statement made before Police. In cross-examination, he stated not to have told the name of any accused and further stated that he had no talk with Gopal Sah in the way regarding the occurrence. PW 20 further stated that whatever Gopal Sah stated to the Sub-Inspector of Police, the Sub-Inspector of Police noted down on a paper but that paper has not been produced. PW 27, the Investigating Officer, Sub-Inspector of Police, Janki Das, though in paragraph 1 of his examination-in-chief denied to have recorded it in paragraph 59 of his cross-examination, PW 27 stated that when Gopal Sah, along with chowkidar, came at Sajour Outpost and reported regarding the assault then he had noted it down that statement in the case diary. As per statement of PW 10, Gopal Sah, supported by evidence of PW 20, chowkidar, Fuleshwar Paswan, the information was regarding commission of a cognizable offence to an officer of the rank of Sub-Inspector of Police, was subsequently investigated the case. Why he did not consider that statement as the First Information Report, is not understandable. As per statement of PW 10, Gopal Sah, supported by evidence of PW 20, chowkidar, Fuleshwar Paswan, the information was regarding commission of a cognizable offence to an officer of the rank of Sub-Inspector of Police, was subsequently investigated the case. Why he did not consider that statement as the First Information Report, is not understandable. In view of the aforesaid statement of PW 27 that he had recorded the statement of Gopal Sah at Sajour Camp itself regarding the occurrence of assault subsequent fardbeyan (Exhibit 10) of PW 12 is definitely barred under Section.162 of the Criminal Procedure Code. Thus, PW 20, Fuleshwar Paswan, chowkidar, has not supported the prosecution case regarding the manner of occurrence and about the participants. His statement that Radha Devi was taken from the door of Baldev in injured condition to Sajour State Dispensary did not also fit in the prosecution story that PW 12, Radha Devi, was assaulted inside the house of Mustafa and from there she was taken to the Dispensary. 13. PW 1, Shivnandan Sharma, who was described as the person accompanying Bhola Sah from Amarpur to his village and also about going from Jhitkiyan to Amarpur, along with Bhola. He did not support the prosecution version and clearly introduced a new fact when in his examination-in-chief, PW 1 introduced a new fact that Bhola was chased by Arjun and assaulted with a spade on his head even before Bhola had reached near the house of Mustafa. None of the witnesses even, PW 3 or PW 12, who were accompanying Bhola (deceased), stated that Bhola was assaulted even out-side the house of Mustafa and that to by a spade. In paragraph 3, this witness stated that appellants Arjun and Prakash inflicted dagger injuries in the neck of the mother of Bhola. The developed version, in this regard, by the witnesses was that injury in the neck of Domini was allegedly inflicted by appellant Jogindra with a gupti. It is significant to note that weapon gupti was subsequently introduced in course of evidence and that in fardbeyan nowhere use of gupti was mentioned. The developed version, in this regard, by the witnesses was that injury in the neck of Domini was allegedly inflicted by appellant Jogindra with a gupti. It is significant to note that weapon gupti was subsequently introduced in course of evidence and that in fardbeyan nowhere use of gupti was mentioned. In paragraph 12 of his cross-examination, PW 1 further introduced a new fact that when Bhola was being assaulted inside the room and his father and mother were in the courtyard of Mustafa, his sister, Radha (PW 12) was outside the house and in paragraph 14 he staled that Radha Devi was unconscious outside the house of Mustafa. It is this statement not supported by any other witness, except PW 20, choukidar, who stated that Radha Devi was taken in injured condition from the door of Baldev. This witness further stated that the same set of accused who assaulted Bhola inside the room, assaulted his parents in the angan. This part of evidence is also not supported by any other witness. His evidence in paragraph 15 of the cross-examination that there were no door planks in the room in which Bhola was assaulted is falsified by the statement of the Investigating Officer, PW 27, who stated that door planks of that rooms were opened. PW 1 further introduced a new fact in paragraph 18 of his cross-examination that after taking meal, after an hour, they had gone to Harijan Tola for Panchayati and in paragraph 31, he clarified it that Panchayati was regarding that gairmazrua land and that there was only some talk and no Panchayati was made. His evidence in paragraph 36 of the cross-examination regarding injuries inflicted on Bhola Sah also did not find support from the medical evidence. PW 1 had stated that he had seen dagger blows being inflicted by the side of both eyes of Ehola and that 8-9 injuries were caused from the back portion of spade. It was rightly contended that if PW 12 was assaulted outside the house and she fell down there, she could not be an eye-witness of alleged assault inside the room and the angan. 14. It was rightly contended that if PW 12 was assaulted outside the house and she fell down there, she could not be an eye-witness of alleged assault inside the room and the angan. 14. The prosecution examined PW 7, Bimli Devi, the widow of deceased (Bhola), PW 9, Savita Devi, wife of PW 10, and PW 18, Subodh Kumar, the son of the Informant, as eye-witnesses, but none of the witnesses nor in fardbeyan (Exhibit 10), they were named as witnesses, were present at the place of occurrence. PW 7, Bimli Devi, stated to have gone on hearing hulla to the house of Mustafa, along with PW 9. She claimed in paragraph 27 of her cross-examination that her husband was also assaulted with garasa but no garasa injury was found on the person of deceased, Bhola. She named five persons as the assailants of her husband inside the room, that is, appellants Sahdeo, Shyam Sundar, Arjun, Prakash and Joginder and further named other seven persons, namely, Gulabi, Fekan, Laxman, Ganpati, Joginder, Devi and Dukhan, as the assailants of her father-in-law (PW 3), mother-in-law (deceased) and sister-in-law (PW 12) but in paragraph 30 of her cross-examination, she stated that five persons in the room and five persons in the court-yard, total ten accused persons only were there. PW 9, Savita Devi, in her statement introduced a new fact that panwa of a cot was also used as weapon for assault. PW 18, Subodh Kumar, is also a chance-witness inasmuch as he claimed that he was playing there and he saw the occurrence. None of the witnesses, PWs 3, 10 or 12, named these three witnesses PWs 7,9 and 18 to be present at the place of occurrence. Even PW 12, the Informant, stated in paragraph 60 of her cross-examination that Bimli (PW 7) had come at Bhagalpur hospital. On the basis of discussion, made above, I find weight in the argument of the learned counsel for the appellants that these three witnesses, PWs 7, 9 and 18, were examined simply to exceed the number of eye-witnesses and they were actually not present at the place of occurrence at the relevant time. 15. On the basis of discussion, made above, I find weight in the argument of the learned counsel for the appellants that these three witnesses, PWs 7, 9 and 18, were examined simply to exceed the number of eye-witnesses and they were actually not present at the place of occurrence at the relevant time. 15. PW 10, Gopal Sah, brother of the informant, stated in paragraph 7 of his evidence that Sahdeo assaulted Bhola with the back portion of garasa and Arjun and Prakash assaulted Bhola with back portion of spade and Shyam Sundar assaulted Bhola with the back portion of khanti and Joginder assaulted with gupti and Medi @ Medni assaulted with bhala. It is significant to note that, as per fardbeyan, Arjun was armed with a bhala and Joginder was armed with a farsa. PW 10 in paragraph 19 of the cross-examination further stated that after ten minutes of his arrival inside the court-yard, the assault took place. But in paragraph 49 of his, cross-examination, he gave another version asserting that as soon as he entered the angan, assault was started. He further stated that his father and sister were not assaulted by garasa or farsa. As admittedly, PW 10 left the place for Outpost, he could not be an eye-witness of entire occurrence. 16. PW 3, Raghubeer Sah, is the fatheV of the Informant and deceased, Bhola and one of the injured. He introduced the new story of assault by gupti which was not mentioned in the fardbeyan (Exhibit 10). He further stated that Arjun inflicted dagger injury to his wife. He further stated that Radha was assaulted by Sahdeo, Prakash, Arjun, Fekan and Joginder and he was assaulted by Kokan, Laxman, Fekan and Dukhan. He contradicted PW 1 by stating that his wife and his daughter were all assaulted inside the angan. In paragraph 30 of his cross-examination, he stated that six accused persons assaulted Bhola inside the room and that till he became unconscious, those six assailants remained inside the room. If this be so, Joginder was one of the assailants of Bhola and he could not be assailant of Domini Devi also, who was allegedly assaulted in the angan by Joginder with a gupti which fact was introduced in course of evidence and did not find place in the fardbeyan. PW 12, the Informant, was another injured. If this be so, Joginder was one of the assailants of Bhola and he could not be assailant of Domini Devi also, who was allegedly assaulted in the angan by Joginder with a gupti which fact was introduced in course of evidence and did not find place in the fardbeyan. PW 12, the Informant, was another injured. She stated that her statement was recorded by the Sub-Inspector of Police at Sajour State Dispensary. In her fardbeyan (Exhibit 10), she did not allege that Shyam Sundar was armed with a pauwa of cot but in her evidence in paragraph 18, she introduced this new fact. In her fardbeyan, she had not stated that Bhola, after assault, was dragged outside the house of Mustafa, but she introduced this fact in her evidence in paragraphs 11 and 41 of her evidence. This witness in paragraph 9 of her evidence asserted that she had received piercing injury in her hand claiming that bhala was inflicted from one side to pierce it to other side of the hand, but no such injury was found by PW 13, Dr. N.K. Choudhary on the person of Radha Devi (PW 12). 17. PW 27 is the Investigating Officer, the Sub-Inspector of Police, Janki Das. I have discussed above that the information given to this witness by PW 10 and the chowkidar should have been treated as the First Information Report. His explanation in paragraph 1 of his cross-examination that since he had received information regarding continuing assault and, as such, he did not record that information as First Information Report and rushed to the place of occurrence is not satisfactory explanation when he had received definite information regarding commission of cognizable case. He stated that the injured were sent to Bhagalpur Medical College Hpspital from Sajour State Dispensary itself. According to this witness, the fardbeyan was sent to Shahkund Police Station through chowkidar, Paddu Tanti, for registration of the case. He stated to have issued injury reports (Exhibits 11, 11/1 and 11/2) at Sajour State Dispensary. It appears from perusal of those reports (Exhibits 11 to 11/2), that PW 13 noted down the injuries on the back of it, which were marked (Exhibits 2 to 2/2). He stated to have issued injury reports (Exhibits 11, 11/1 and 11/2) at Sajour State Dispensary. It appears from perusal of those reports (Exhibits 11 to 11/2), that PW 13 noted down the injuries on the back of it, which were marked (Exhibits 2 to 2/2). I find that PW 27 was not correct in stating that injured were directly sent from Sajour State Dispensary to the Bhagalpur Medical College Hospital, which is apparent from the fact that the case was registered at 10.15 p.m. at Shahkund Police Station, but the injury reports (Exhibits 11 to 11/2) issued by PW 13 mentioned Shahkund P.S. Case No. 72/83 whereon and the injured were examined by PW 13 in between 9.40 p.m. to 9.50 p.m. on 11.8.1983. Police Station case number could be noted down only after 10.30 p.m. when the case was registered. This indicated that some ante-dating was made. PW 27 further stated to have found blood-stains inside the room and also in the angan of Mustafa but he had also found blood-stains in the Kargha ghar (spinning room), in which, according to the prosecution case, no body was assaulted. 18. The learned Counsel for the appellants contended that in the fardbeyan (Exhibit 10), there was general allegation regarding assault and it was nowhere mentioned that Bhola was assaulted inside a room of Mustafa and it was also not mentioned as to where the Informant and her father and mother were assaulted by which weapon and by whom. It was also pointed out that story of assault by kulhari was given a go-bye in evidence and story of Joginder giving a gupti blow was introduced though he was allegedly armed with farsa only. The learned Counsel for the appellants further submitted that there was delay in receipt of First Information Report in the Court of the Chief Judicial Magistrate but in view of the statement of PW 23, Md. Ziyaullah, that it was received on 12.8.1983 at 2.30 p.m. by the Assistant Sub-Inspector of Police, L. Roy. I do not find that there was any delay in receipt of the First Information Report even though it was produced before the Chief Judicial Magistrate on 13.8.1983. 19. Ziyaullah, that it was received on 12.8.1983 at 2.30 p.m. by the Assistant Sub-Inspector of Police, L. Roy. I do not find that there was any delay in receipt of the First Information Report even though it was produced before the Chief Judicial Magistrate on 13.8.1983. 19. Summing up the entire discussion made above, I find that definite information regarding commission of a cognizable offence to PW 27 at Sajour Outpost given by PW 10 should have been treated as First Information Report of this case and in that view of the matter, the present fardbeyan (Exhibit 10) of PW 12 would be barred under Section 162 of the Criminal Procedure Code as it was recorded in course of investigation by PW 27. I have further held that from medical evidence of the injuries of PWs 3 and 12, no case under Section 307 of the Indian Penal Code is made out. I have also held above that no independent witnesses have come forward to support the prosecution story. PW 20, the chowkidar, and PW 22, Mustafa, in whose house the assault took place did not support the prosecution case. They were declared hostile and PW 16, Chunchun Singh, also did not support the prosecution case. I have held above that PWs 7, 9 and 18 were not present at the place of occurrence and their presence were not supported by any other witness. I have held above that PW 1, who claimed to be present there, gave different version of the occurrence regarding assault on Bhola even outside the house of Mustafa and regarding assault on PW 12, Radha Devi, the Informant, outside the house of Mustafa supported by PW 20, who stated that injured Radha was lifted from near the house of Baldev and was taken to State Dispensary. The ocular evidence of PW 1, regarding injuries of Bhola, did not find support from medical evidence and new facts were introduced regarding Panchayati at Harijan Tola. I have held above that story of inflicting gupti injury and assault by pauwa were introduced in course of evidence which was not mentioned in the fardbeyan. The ocular evidence of PW 1, regarding injuries of Bhola, did not find support from medical evidence and new facts were introduced regarding Panchayati at Harijan Tola. I have held above that story of inflicting gupti injury and assault by pauwa were introduced in course of evidence which was not mentioned in the fardbeyan. Thus, excluding the evidences of PW 20 and PW 22, who did not support the prosecution case, as alleged, and the evidence of PW 16 and PW 1 who gave different version of the occurrence and evidence of PWs 7,9 and 16, whose presence at the place of occurrence has been doubted and evidence of PW 10 who could not be an eye-witness of entire occurrence as he left for place of occurrence at initial stage of occurrence, there remains the evidence of only two injured PW 3 and PW 12 who developed the case from stage to stage. The description of assault given by witnesses and regarding participation of the appellants who not consistent and eye-witnesses account suffered serious infirmities. 20. In the result, I find and hold that the prosecution has failed to prove its case beyond doubt regarding manner of occurrence and its participants and the case has been developed from stage to stage and story of gupti injury and assault by pauwa was introduced at evidence stage. 21. Accordingly, both these appeals are allowed and the order of conviction and sentence passed against the appellants are set aside and the appellants are released from the liabilities of their bail bonds. D.P.S.Choudhary, J. 22 I agree.