Judgment D.N.Prasad, J. 1. All these three appeals arise out of the same judgment and also heard together and are being disposed of by this common judgment. 2. The appellants filed these appeals against the judgment of conviction and sentence passed by Shri P.N. Yadav the then 3rd Additional Sessions Judge, Hazaribagh in S.T. No. 97/81 convicting the appellants under "Sections 302/149, IPC and sentencing them to undergo for life. 3. The case of the prosecution in brief as stated that on 15-8-1980 at about 6.30 p.m. one Churaman Gopelodged an FIR claiming therein that he along with Shyam Lal Gope, Hart Gope and Tako Gope (deceased) were ploughing paddy crops at their field at about 11 a.m., when the accused persons namely, Basudeo Sao, Lalji Sao, Janki Sao, Gujar Sao, Baleshwar Sao, Kedar Sao, Chintaman Sao, Rajendra Sao. Deodhari Sao. Ram Sharan Sao, Babulal Sao, Naresh Sao, Bilat Sao, Prayag Sao, Bisheswar Sao, Sobaran Sao, Indradeo Sao, Ambo Sao and 4-5 others came to the field of the informant and surrounded Tako Gope and thereafter all the accused - persons started assaulting him. Basudeo Sao was assaulting with boola whereas other accused-persons assaulted Tako Gope with lathi, as a result of which Tako Gope fell down being injured and died at the spot. The witnesses went at some distance and they saw the occurrence. Imaman Mian, Mahabir Gope and Kamal Gope, the witnesses, have also seen the occurrence as they had reached to the place of occurrence on halla. There is enmity between the both parties due to the land dispute. It is further alleged that due to incessant rain, the informant reached the Police Station to evening at about 6 p.m. and lodged the FIR accordingly, against all the accused persons. The police investigated into the case and submitted charge - sheet accordingly. The case has been committed to the Court of Sessions. All the accused appeared in the Court of the Additional Sessions Judge when the charge under Secs. 302/149 was framed against all the appellants to which the appellant denied the allegations. 4. The police investigated into the case and submitted charge - sheet accordingly. The case has been committed to the Court of Sessions. All the accused appeared in the Court of the Additional Sessions Judge when the charge under Secs. 302/149 was framed against all the appellants to which the appellant denied the allegations. 4. The defence case as alleged that all the accused-persons/appellants have been falsely implicated in the case out of long - standing enmity and there was no occurrence took place in the manner as alleged as well as the appellant, Basudeo Sao was not present at the place of occurrence, rather he was on duty at Kathara Coal Washery. Not being satisfied with the judgment of conviction and sentence, this appeal has been filed. 5. The sole point arises for consideration as to whether the prosecution has been able to establish the charge against the appellants beyond all reasonable doubts. 6. Altogether, eight witnesses have been examined in the case on behalf of the prosecution, of whom PW 7 is the Doctor, who held post-mortem on the dead body of Tako Gope. PW 1, Mahabir Gope stated in his evidence that he had rushed to the place of occurrence on hulla and he had seen the appellants, namely, Basudeo Sao, Prayag Sao. Gujar Sao, Baleshwar Sao, Kedar Sao, Chintaman Sao and Janki Sao, who were assaulting Tako Mahto. According to him, Basudeo was holding boola and he was assaulting with the said bhala whereas other accused were assaulting with lathi He emphatically admitted in his examination-in-chief itself that he had seen only seven accused persons named above. He has been declared hostile by the prosecution and he denied about the presence of other appellants at the place of occurrence at the relevant time. He admitted in para 4 that there was a land dispute between Tako (deceased) and Churaman in one side and. accused on the other side from before and for which there was a proceeding under Secs. 144 and 145, Cr. PC. He further admitted in para 11 of the cross-examination that Tako was assaulted only by seven persons named above and not by any other person. 7. PW 2, Shyamlal Gope, who is the cousin brother of PW 1 also claimed to have identified only seven accused namely, Basudeo Sao. Prayag Sao. Baleshwar Sao, Gujar Sao, Kedar Sao. Chintaman Sao and Janki Sao. 7. PW 2, Shyamlal Gope, who is the cousin brother of PW 1 also claimed to have identified only seven accused namely, Basudeo Sao. Prayag Sao. Baleshwar Sao, Gujar Sao, Kedar Sao. Chintaman Sao and Janki Sao. According to him, Basudeo was holding bhala whereas other accused persons were holding lathi at the relevant time. He further deposed that Basudeo Sao was assaulting with bhala indiscriminately. But, it may be mentioned here that the Doctor did not find any injury caused by sharp-cutting weapon or the injury being pointed or piercing on the person of dead body. The Doctor also did not find any injury on the ear of the deceased. He further deposed that the blood also oozed out from the person of Tako but the said blood washed away due to heavy rain. 8. PW 3, Hart Gope claimed that seven accused - persons, namely. Basudeo Sao, Baleshwar Sao. Chintaman, Gujar. Prayag, Janki Sao had assaulted Tako Gope resulting into the death of Tako. He has not identified any other accused-persons at the relevant time. He also deposed that Basudeo Sao used his bhaza indiscriminately. 9. PW 4. Kamal Gope claimed to have reached the place of occurrence on hulla and he saw Tako lying in the field in injured condition. According to him, accused Prayag Sao assaulted him with lathi as a result of which his hand was fractured, but, the Doctor did, not find any such injury being fracture of the hand of deceased. Admittedly, this witness reached to the place of occurrence after the incident is according to him he rushed there and saw Tako in his cross - examination and as such he cannot be said to be the eyewitness of the occurrence: He further stated in para 8 that he along with Churaman and Mahabir Sao reached to the place of occurrence together on hulla. He found Tako lying on the field and he had not seen other accused-persons at the relevant time. He further stated that Shyamlal. PW 2 is his son. 10. PW 5. lmaman Mian stated that he reached the spot along with Churaman on hulla and found Tako Mahto lying on the field and he was also injured. The witnesses. Kamal Mahto, Hart Mahto and others told him (PW 5) about the occurrence. He has been declared ho stile by the prosecution. PW 2 is his son. 10. PW 5. lmaman Mian stated that he reached the spot along with Churaman on hulla and found Tako Mahto lying on the field and he was also injured. The witnesses. Kamal Mahto, Hart Mahto and others told him (PW 5) about the occurrence. He has been declared ho stile by the prosecution. Obviously he has not seen the occurrence nor he has named any of the accused-persons being identified at the relevant time. 11. PW 6, Churaman, the informant stated that he along with Hari Gape, Shyamlal Gope and Tako Gope were ploughing the paddy field when accused-persons namely. Basudeo Sao, Prayag Sao. Baleshwar Sao. Gujar Sao, Kedar Sao, Laljee Sao, Bisheshwar Sao, Chintaman Sao, Ram Sparan Sao, Deodhari Sao, Rajendra Sao. Ambo Sao. Janki Sao. Babulal Sao and Naresh Sao as well as 2-4 other persons came there and accused - Basudeo. Prayag, Baleshwar. Gujar, Kedar. Janki and Chintamani Sao started assaulting Tako and rest accused - persons surrounded him. He stated that Basudeo was possession bhalawala Zathi. According to him, all the accused-persons assaulted Tako Gope with Zathi as a result of which Tako fell down and died there. There was also a proceeding under Sec. 144. Cr. PC with accused Chintaman Sao and others and he lodged the FIR. There was also a land dispute with Prayag Sao and he cannot say as to who gave how much lathi blows on the person of Tako and he was watching the incident from a distance of two zarib. He further stated that there was incessant lathi blows on the person of Tako. PW 7. Dr. Madhu Sudan Shukla held post-mortem on the person of the dead body of Tako Gope and found following ante-mortem injury: (1) The body was in the state of decomposition and rigor mortis was absent. There were marks of bleeding from the mouth and nostrils swelling on whole of right arm fracture of right side humerous abrasion of upper jaw and dried blood clot in the socket. (2) On dissection the fracture of rib Nos. 7 to 9 on right side posteriorly. There was laceration of right lung at the middle lobe. On the left side of chest there was fracture of ribs Nos. 4 to 8 posteriorly. There was laceration of left lung in its middle. (2) On dissection the fracture of rib Nos. 7 to 9 on right side posteriorly. There was laceration of right lung at the middle lobe. On the left side of chest there was fracture of ribs Nos. 4 to 8 posteriorly. There was laceration of left lung in its middle. The blood measuring about 200 Cc was present in the chest cavity. All the above injuries according to the Doctor were ante-mortem and possible by hard and blunt substance. He proved the post-mortem report. Ext. 1 He, clearly stated that he did not find any incised injury on the dead body. According to him the injury as found could be caused by successful falls and not by single fall provided that the fall was with some pressure. Stomach of the deceased was found empty. No food was there in the stomach, which means that the deceased did not take any food since 4-6 hours before his death. The death was not caused due to loss of blood but the death was due to shock and internal haemorrhage due to above injuries. PW 2. in his evidence stated that Tako had taken meal (rice) before going to plough in the field but the Doctor found the stomach empty. 12 PW 8. Ramdeo Singh the Investigating Officer proved the FIR (Ext.1). He also claimed to have visited the place of occurrence on 16-8-1980 in the morning and found the dead body lying there. There was water in the field and he did not find sign of blood at the place of occurrence. He examined the witnesses and thereafter he submitted the charge - sheet. He admitted in his cross -examination that he had not seized dhoti and vest of Tako at the relevant time. He had also searched the house of the accused-persons but nothing incriminating was detected. The witness. Mahabir. PW 1 stated before him that at the time of occurrence he along with Chintaman and others fled away in the western side at the time of occurrence. 13. No any other witness has been examined on behalf of the prosecution. The appellants/ accused - persons were examined under Sec. 313. Cr. PC and they have denied allegation. Five witnesses have also been examined on behalf of the defence in support of the alibi as claimed by appellant-Basudeo. 14. DW 5. Mahadeo Prasad is a formal witness. 13. No any other witness has been examined on behalf of the prosecution. The appellants/ accused - persons were examined under Sec. 313. Cr. PC and they have denied allegation. Five witnesses have also been examined on behalf of the defence in support of the alibi as claimed by appellant-Basudeo. 14. DW 5. Mahadeo Prasad is a formal witness. DW 1, N.K: Paswan the Executive. Engineer in Kathara Coal Washery stated that Basudeo Sao was on duty from 7.30 a.m. to 3.30 p.m. on 158-1980. He further deposed that Kathara is situated at a distance of 85 kilometres away from Hazaribagh but he admitted at the time that 14-8-1980 was the rest day of Basudeo. DW 2. Dukhlal Singh Yadav being the Time-Keeper of Kathara Washery stated that Basudeo was on duty on the date of occurrence and used to note down the attendance of the persons attending the duty and he made his attendance and thereafter, went on duty. He stated in his cross-examination that he used to make the attendance of the person, who usually comes 7.30 to 7.40 a.m. and the person, who comes thereafter marked to be absents. 15. DW 3, Aditya Kumar Sharma, Labour Welfare Officer, Kathara Washery claimed to be the Labour Officer in Kathara Washery from January 1981, but admittedly the occurrence took place in the year 1980, when he was not present there. 16. DW 4. Ram Briksh Sao, the brother-in-law of Basudeo stated that Basudeo is working in the Factory. He further stated that Reber is situated at a distance of 30 kilometres from Hazaribagh. 17. It is significant to note here that all the appellants have been charged for the offence under Secs. 302/49, IPC and no charge specifically under Sec. 302, IPC has been framed, as obviously there is a general and common allegation against all the appellants for causing assault by lathi except against appellant Basudeo Sao who was possessing spear at the time of occurrence but the Doctor did not find any injury caused by sharp cutting weapon or piercing injury on the person of the deceased. PW 6 the informant also stated in his evidence that Basudeo Sao was holding lathiwala bhala at the time of occurrence which goes to indicate that he developed such statement after finding that the Doctor did not indicate any piercing injury on the person of the deceased. PW 6 the informant also stated in his evidence that Basudeo Sao was holding lathiwala bhala at the time of occurrence which goes to indicate that he developed such statement after finding that the Doctor did not indicate any piercing injury on the person of the deceased. PW 1, PW 2. PW 3 and PW 4 have only identified seven accused personal namely, Basudeo Sao, Prayag Sao. Gujar Sao. Baleshwar Sao. Kedar Sao. Chintaman Sao and Janki Sao at the time of occurrence and they have emphatically stated that they had not identified any other accused in committing the crime. 18. At this stage, 1 may also mention here that the case of Kedar Sao has already been separated by the lower Court on the ground of this minority and as such the said witnesses identified six appellants only at the time of occurrence. It is evident from the judgment of the lower Court itself that as many as 18 accused-persons were charged under Secs. 302/149. IPC of whom three accused, namely, Bilat Sao, Indradeo Sao and Sibran Sao have been acquitted by the learned Sessions Judge. It is also clear from the evidence of the witnesses that the appellants of Cr. Appeal No. 304 of 1989 (R), namely. Babulal Sao. Naresh Sao, Bisheshwar Sao and Ambo Sao have not been identified by the witnesses (PW1. PW2, PW 3 and PW 4) 19. PW 5, Imaman Mian who can only be said to be an independent witness has not seen the occurrence and he has not identified any of the appellants at the time of occurrence. He has been declared hostile by the prosecution. According to him he also reached to the spot on hulla of Churaman Gope. PW 6 the informant and he claimed to have reached to the spot along with Churaman, when he found Tako lying in the injured condition in the field. Churaman the informant himself admitted in the FIR that Imaman Mian. PW 5 was also present in his maize field at the relevant time and he had seen the occurrence. In the above circumstances, Churaman Gope, the informant cannot be said to be the eye - witness of the occurrence when the independent witness PW 5 reached the place of occurrence along with Churaman and Tako was found lying in the injured condition in the field itself. In the above circumstances, Churaman Gope, the informant cannot be said to be the eye - witness of the occurrence when the independent witness PW 5 reached the place of occurrence along with Churaman and Tako was found lying in the injured condition in the field itself. However, the informant, PW 6 claimed to have identified 15 appellants only and according to him, all the appellants assaulted Tako with lathi. There is nothing specific against any of the appellants for playing role in the alleged crime. PW 2, claimed in his evidence that Tako had taken meal before going to the field but admittedly the Doctor found the stomach of Tako empty. PW 4, deposed that Basudeo/appellant had pierced the bhala in the ear of Tako, but, no such injury was found by the doctor who held post-mortem on the dead body of Tako and as such their evidence on this point is very much contradictory to the medical evidence. It is also clear from the version of PW 6, the informant itself when he changed his statement by saying that Basudeo was holding bhalan wala lathi. 20. Enmity between both parties are admitted, as the cases and the proceedings under Sections 144/145, Cr. PC, are pending. All the witnesses except PW 5 appear to be relations and there is much contradiction in their evidence also. As discussed above, there is nothing specific or direct allegation/ evidence against any of the appellants for committing specific role at the time of occurrence or using specific blow resulting the death of Tako. There is also absolutely no evidence on the basis of which it can be said that the appellants were the members of the unlawful assembly and the said offence was committed by the members of unlawful assembly in prosecution of their common object. There no overt act was attributed to any of the appellants specifically on the deceased, the mere fact that the appellants were armed with lathi would not by itself prove that they share the common object with which the main accused was inspired. Moreover, there is nothing specific against any of the appellants for committing overt act. There no overt act was attributed to any of the appellants specifically on the deceased, the mere fact that the appellants were armed with lathi would not by itself prove that they share the common object with which the main accused was inspired. Moreover, there is nothing specific against any of the appellants for committing overt act. In a case of this nature, where several appellants said to be possessing lathi, but, not specifically ascribed for playing role in the alleged crime, it would be difficult to hold about sharing the common object by all the appellants when admittedly out of 18 accused, three accused have already been acquitted by the lower Court itself and there is no specific charge against any of the appellants for the offence under Sec. 302. IPC. The evidence of the witnesses are also very much contradictory. 21. The learned Counsel appearing on behalf of the appellants submitted that the learned Court below committed error in convicting the appellants without any legal evidence and there is also much contradiction between ocular evidence and the medical evidence. It is further submitted that none of the witness identified the appellants, namely, Babulal Sao, Naresh Sao. Bisheshwar Sao and Ambo Sao, but even then the learned Court below convicted them. When other three accused Bilat Sao. Sobran Sao and lildradeo Sao, whose case also stands on similar footing, have been acquitted by the learned Court below. It is further argued that the Doctor did not find any sharp-cutting wound or piercing wound on the dead body of Tako though there was specific allegation against Basudeo Sao for causing blow by bhala, which makes the whole prosecution case suspicious and the appellants are entitled for the benefit of doubt. It is further argued that the Investigating Officer did not find bloodstain at the place of occurrence and there is also delay in lodging the FIR which creates doubt that a false story has been fabricated with a purpose to implead the appellants who are admittedly on inimical terms from before. It is also argued that the Doctor, PW 7 found the stomach of deceased empty whereas the prosecution story is otherwise and that the deceased had gone to the field after taking food and as such the medical evidence is also inconsistent with the ocular evidence. It is also argued that the Doctor, PW 7 found the stomach of deceased empty whereas the prosecution story is otherwise and that the deceased had gone to the field after taking food and as such the medical evidence is also inconsistent with the ocular evidence. It is further argued specifically on behalf of the appellant, Basudeo Sao that he was not present at the time of occurrence as he was on duty at Kathara Washery and all the defence witnesses including the Time - Keeper" claimed that Basudeo Sao was on duty at Kathara Washery at the time of occurrence. 22. The Apex Court held in the case of Hardayal Singh and Others V/s. State of Punjab, that five known persons being charged under Secs. 302/149, IPC and two of them having been acquitted of the charge, the Court below committed gross error of law in convicting rest three accused - persons by taking recourse to Sec. 149, IPC. Likewise, the Apex Court also observed in another case reported in State of West Bengal V/s. Bindu Laxman Das Sakharani alias Deru, that both husband and wife were charged under Sec. 302 read with Sec. 34, IPC. The husband having been acquitted and there being no independent charge under Sec. 302, IPC against the wife, she cannot be convicted for the said offence 23. PW 1, PW 2 and PW 3 deposed that only seven appellants, namely. Basudeo, Prayag, Gujar, Bisheswar, Kedar, Chintamani and Janki had assaulted Tako but the Investigating Officer, PW 8 claimed in his evidence that all those three witnesses had named 16 accused - persons before him in their statement under Sec. 161. Cr. PC for assaulting Tako. As indicated in Paras 17 18 and 19 of PW 8, which is apparent that these witnesses have changed their version at the time of trial and put the allegation against only seven accused - persons according to their desire or will. Such statement, which has been developed and changed later on and also not - consistent, cannot be said to be trustworthy and believable. The witnesses being the relation and also suffered from inimical terms with the appellants cannot be relied upon. 24. Obviously, there is enmity between the parties in respect of land dispute from before. Such statement, which has been developed and changed later on and also not - consistent, cannot be said to be trustworthy and believable. The witnesses being the relation and also suffered from inimical terms with the appellants cannot be relied upon. 24. Obviously, there is enmity between the parties in respect of land dispute from before. The witnesses examined from the side of the prosecution are own relation," except PW 5, who has not supported the prosecution case in any manner. As discussed above, it is apparent that the learned Sessions Judge acquitted " three accused persons out of 18, when the charge under Secs. 302/149. IPC only was framed against all and there was no independent charge for the offence under Sec. 302, IPC. There is also much contradiction about the ocular and the medical evidence. Except, PW 6, the informant none of the witnesses named all the appellants. None of the witnesses stated about specific overt act attributed to any of the appellants. In this way, the learned Court below committed gross error in convicting the appellants in absence of positive and specific deposition. In the above facts and circumstances, the whole story of prosecution fall within the ambit of strong suspicion and the prosecution case in the manner as alleged has not been established conclusively, for which the appellants are entitled for benefit of doubt. 25. Thus, considering the entire evidence on record it is clear that the prosecution has totally failed to establish the charge against the appellants beyond all reasonable doubts as required under law. 26. In the result. I find merit in the appeals and accordingly all the above three appeals are allowed. The appellants are acquitted. The judgment of conviction and sentenced passed by the learned Additional Sessions Judge is hereby set aside. The appellants who are on bail are discharged from the liability of their bail - bonds. R.A.Sharma, J. 27 I agree.