JUDGMENT M.L. Visa, J 1. Both these appeals have been heard together and are being disposed of by this common judgment as both these appeals are directed against the judgment and order dated 16.12.1986 passed by 3rd Additional Sessions Judge, Madhubani, in Sessions Trial No. 55/80 (56 of 1985) convicting and sentencing appellants Lelai Mahto and Jagdish Thakur to undergo imprisonment for life under Section 302 of the Indian Penal Code (in short, "IPC") and RI for a period of 3 years each under Section 148, IPC, appellants Jagdish Mahto, Badri Mahto and Siaram Mahto to undergo RI for a period of 3 years each under Section 148, IPC, appellants Mahadeo Mahto, Tetar Mahto. Sitaram Mahto and Sadhu Yadav to undergo RI for a period of 2 years each under Section 147, IPC and RI for a period of 6 months each under Section 323, IPC. Appellant Jagdish Mahto has further been convicted and sentenced to undergo RI for a period of 2 years under Section 324, IPC and appellants Badri Mahto and Siaram Mahto have been further convicted and sentenced to undergo RI for a period of 1 year each under Section 324, IPC. These two appellants have been convicted under Section 323, IPC also but no separate sentence under this head has been passed against them. All the sentences passed against each of the appellants have been ordered to run concurrently. 2. The case of the prosecution, in short, is that on 14.6.1979, informant Janak Mandal (PW 6), who at the relevant time was chaukidar of village Sukhet, at 10.15 a.m. went to Jhanjharpur police station within the district of Madhubani and lodged a fardbeyan (Ext. 5) stating therein that on the same day at about 8 a.m. a 'panchayati' was being held in connection with plucking of mangoes from a tree between appellant Lelai Mahto and Nandlal Mahto (PW 8). During the course of 'panchayati' an altercation took place between both of them because both were claiming the mango tree. During the course of this altercation, appellant Lelai Mahto pushed Sundarlal Mahto, the nephew of Nandlal Mahto, by putting his hand on his neck and thereafter, on the order of appellant Lelai Mahto all other appellants variously armed with 'bhala', 'gransa', 'lathi' and forming unlawful assembly came there. During the course of this altercation, appellant Lelai Mahto pushed Sundarlal Mahto, the nephew of Nandlal Mahto, by putting his hand on his neck and thereafter, on the order of appellant Lelai Mahto all other appellants variously armed with 'bhala', 'gransa', 'lathi' and forming unlawful assembly came there. Thereafter, appellant Lelai Mahto ordered other appellants to assault and kill on which appellants Badri Mahto, Jagdish Mahto, Tetar Mahto and Siaram Mahto, who were armed with 'gransa' assaulted Nandlal Mahto and other appellants assaulted him with lathi. Appellants Jagdish Mahto, Siaram Mahto and Badri Mahto assaulted Chingi Mahto (PW 5). Appellant Badri Mahto assaulted Sukhdeo Mahto (PW 3). Appellants Jagdish Mahto, Lelai Mahto and Badri Mahto assaulted Sundarlal Mahto and cut his neck with 'gransa' and when after receiving injury Sundarlala Mahto tried to escape by running, he fell down in a field and died there. The occurrence was witnessed by Shivan Deo (PW 1), Kujai Mahto (PW 7), Satyadeo Mahto (PW 2) and Shiv Nandan Mahto (not examined). On the basis of this fardbeyan, a case under Sections 147, 149, 148 and 302, IPC was registered against all the appellants and after investigation chargesheet was submitted. After taking cognizance, the case was committed to the Court of Sessions where charges under Section 302/ 149, IPC against all the nine appellants, additional charge under Section 302, IPC against appellant Jagdish Thakur, Lalai Mahto, Badri Mahto and Jagdish Mahto for committing murder of Sundarlal Mahto, charge under Section 324, IPC Against appellant Badri Mahto for voluntarily causing hurt to Chingi Mahto by means of 'gransa' , charge under Section 324, IPC against appellant Badri Mahto, Jagdish Mahto, Tetar Mahto and Siaram Mahto for voluntarily causing hurt to Nandlal Mahto by means of 'gransa' charge under Section 323, IPC against appellants Mahadeo Mahto, Sadhu Yadav and Sitaram Mahto for voluntarily causing hurt to Sukhdeo Mahto and charge under Sections 323 and 325 against appellants Jagdish Mahto, Badri Mahto and Siaram Mahto for voluntarily causing grievous hurt and voluntarily causing hurt to Chingi Mahto were framed. The appellants denied the charges and their case before the Court below was that they have been falsely implicated in this case on account of grudge and enmity. The Court below after trial found the appellants guilty and convicted and sentenced them as stated above. 3. In order to prove its case, the prosecution has examined 14 witnesses. The appellants denied the charges and their case before the Court below was that they have been falsely implicated in this case on account of grudge and enmity. The Court below after trial found the appellants guilty and convicted and sentenced them as stated above. 3. In order to prove its case, the prosecution has examined 14 witnesses. Chandan Prasad Yadav (PW 9) and Bishwanath Thakur (PW 11) are formal witnesses, who have proved the signatures of Ram Krishna Mahto (Ext. 3), signatures of Sukhdeo Prasad Singh (Ext. 3/1) and a command certificate (Ext. 4) in the pen and signature of Arjun Prasad, the then officer-in-charge of Jhanjharpur police station. Pujai Mahto (PW 7) and Laxmi Narayn Mahto (PW 10) have been tendered. Dr. Manindra Bhatt (PW 14) had held post-mortem examination on the dead body of Sundarlal Mahto. Dr. Ram Narayan Jha (PW 13) is the Doctor, who had examined injured Nandlal Mahto (PW 8), Chingi Mahto (PW 5) and Sukhdeo Mahto (PW 3). Arjun Prasad (PW 12) is the IO in this case. Janak Mandal (PW 6) is the informant. Shivan Deo (PW 1), Satyadeo Mahto (PW 2), Sukhdeo Mahto (PW 3), Jageshwar Mahto (PW 4), Chingi Mahto (PW 5) and Nandlal Mahto (PW 8) are said to be the eye-witnesses to the occurrence. Out of them Sukhdeo Mahto (PW 3), Chingi Mahto (PW 5) and Nandlal Mahto (PW 8) are said to be the injured persons. 4. Dr. Manindra Bhatt (PW 14) in his evidence has said that on 15.6.1979, he was posted at Sadar Hospital, Madhubani and on that day at 1.30 p.m., he held post-mortem examination on the dead body of Sundarlal Mahto and found following ante-mortem injuries on the dead body:- "(i) Incised wound extending from occiput to the left angle of the mouth cutting skin, muscles, large vessels, first cervical vertebra and left mandible and size of injury was 8" x 3" x 2-½ ". (ii) Incised wound penetrating in nature of the size 4" x 2-½ " x 4-½" on the left side of neck at the level of 6th cervical vertebra and on dissection he found one track which passed through the second wound in oblique direction which had cut left pleura at its upper part, cutting trachea teriorally at the level of third cartridge damaging mediastnium entering into right pleura and had cut the right upper lung. The right pleural cavity filled with blood about 8 OZ. and right lung was collapsed. Pericardium was intact. (iii) Incised wound 3/4" x 1/3" x 1/2" at the root of left index finger. According to him, the death was caused due to shock and haemorhage as a result of injury No.(i) and (ii) which were sufficient to cause death in ordinary course of nature and injury No.(i) was caused by sharp-cutting weapon which may be a 'gransa' and injury No.(ii) was also caused by sharp cutting weapon which may be 'gransa' and 'bhala' when both the blows were given one after another. The time of death according to him was within 36 hours. He has proved the post-mortem examination report (Ext.11). About injury No.(iii) he has said that it was also caused by sharp-cutting weapon which may be a 'gransa'. His evidence establishes that death of deceased Sundarlal Mahto was homicidal and was the result of injuries caused to him by sharp-cutting weapon and time of death tallies with the time as alleged by prosecution. 5. Dr. Ram Narayna Jha (PW 13) in his evidence has stated that on 14.6.1979 he was posted as resident Surgical Officer in the department of surgery of Darbhanga Medical College and Hospital at Darbhanga and on that day at about 11.30 p.m., he examined Nand Lal Mahto (PW 8) and found following injuries on his person:- (1) Abrasion 1/2" x 1" x 1" or "right shoulder joint. (2) Incised wound 1-½" x 1/2" x 3/4" on left side of back of chest. (3) Swelling 2" x 1/2" x 3/4" on the right deltoid region. (4) Incised wound 1/2" x 3/4" x 3/4" on the right side of the back of chest. (5) Incised wound 1/2" x 3/4" x 3/4" on the right side of scapular region. All the aforesaid injuries were simple in nature and injury Nos.1 and 3 were caused by some hard and blunt substance such as 'lathi' and injury Nos. 2, 4 and 5 were caused by some sharpcutting weapon such as 'gransa' and age of injuries was within 12 hrs. On the same day at about 11.30 p.m., he examined Chingi Mahto (PW 5) and found the following injuries on his person:- (1) Swelling 1-½" x 1" x 1/2" at right shoulder joint. (2) Incised wound 1/2" x 1/3 x 3/4" over forehead. On the same day at about 11.30 p.m., he examined Chingi Mahto (PW 5) and found the following injuries on his person:- (1) Swelling 1-½" x 1" x 1/2" at right shoulder joint. (2) Incised wound 1/2" x 1/3 x 3/4" over forehead. (3) Swelling 2" x 2" x 1/2" over right wrist joint. Injury Nos. 1 and 2 were simple in nature caused by some hard and blunt substance and injury No.3 was grievous in nature. Injury Nos. 1 and 3 were caused by some hard and blunt substance such as 'lathi' and injury No.2 was caused by some sharp-cutting weapon such as 'gransa' and age of Injuries was within 12 hours. On that very date, at about the same time, i.e., 11.30 p.m. he examined Sukhdeo Mahto (PW 3) and found the following injuries on his person:- (1) Swelling 1" x 1/2" x 3/4" on below right knee joint. (2) Swelling 1" x 1/2" x 3/4" at below right elbow joint. Both the aforesaid injuries were simple in nature caused by some hard and blunt substance such as 'lathi'. He has proved the injury report (Exts.10 to 10/2). 6. Now, it has to be seen what evidence has been led on behalf of prosecution in order to prove that the injuries sustained by deceased Sundarlal Mahto and witnesses, namely, Sukhdeo Mahto (PW 3), Chingi Mahto (PW 5) and Nandlal Mahto (PW 8) were caused by appellants as alleged by the prosecution. 7. Janak Mandal (PW 6), the informant, in his evidence has stated that on the day of occurrence he was going from Tola Basaul to Sukhet Tola and in the way he reached the place where a 'panchayati' between the deceased Sundarlal Mahto and appellant Lelai Mahto was being held in respect of a mango tree. Shivan Deo (PW 1), Kujai Mahto (PW 7), Satyadeo Mahto (PW 2), Shivnandan Mahto (not examined) and Laxmi Narayan Mahto (PW 10) were 'punches' and a number of other persons were also present there. The 'punches' gave their verdict in favour of deceased Sundarlal Mahto but his verdict was not accepted by appellant Lelai Mahto, who putting a hand in the neck of deceased pushed him and ordered to kill him on which appellants Jagdish Thakur, Jagdish Mahto, Badri Mahto and Siaram Mahto armed with 'gransa', appellants Tetar Mahto, Sitaram Mahto, Mahadeo Mahto and Sadhu Yadav armed with 'lathis' came there. Thereafter, he saw appellant Lelai Mahto carrying a 'bhala' in one and a 'gransa' in other hand. Deceased Sundarlal Mahto on seeing these appellants started running and all the appellants chased him. This witness along with Nandlal Mahto (PW 8), Chingi Mahto (PW 5), Sukhdeo Mahto (PW 3) and 'panches' of 'panchayati' followed the appellants. Deceased Sundarlal Mahto while running fell down in the field of Lakhan Mahto and thereafter, appellant Lalai Mahto gave a 'bhala' blow on the neck of deceased Sundarlal Mahto and appellant Jagdish Thakur gave a 'gransa' blow on his neck. Appellant Jagdish Mahto gave a 'gransa' blow on the left hand of deceased cutting his little finger. Appellant Badri Mahto also assaulted him with 'gransa' and when Chingi Mahto (PW 5), Nandlal Mahto (PW 8) and Sukhdeo Mahto (PW 3) tried to save the deceased, appellants Jagdish Mahto, Badri Mahto and Siaram Mahto assaulted Nandlal Mahto (PW 8) with 'gransa' and appellants Tetar Mahto and Mahadeo Mahto assaulted him with 'lathis' and they also assaulted Chingi Mahto (PW 5) and appellants Sitaram Mahto, Sadhu Yadav and Tetar Mahto assaulted Sukhdeo Mahto (PW 3) and thereafter, appellants fled away. According to him, Sundarlal Mahto died at the spot and he then went to Jhanjharpur police station where he lodged the FIR. The defence has given him a suggestion that he did not see any occurrence as stated by him and he was taken to police station by Shivan Deo (PW 1) and lodged the FIR giving the statement tutored to him by Shivan Deo. He has denied this suggestion. He has said that Shivan Deo (PW 1) had not gone to police station and it is not a fact that Shivan Deo had accompanied him to police station right from the village. He has denied this suggestion. He has said that Shivan Deo (PW 1) had not gone to police station and it is not a fact that Shivan Deo had accompanied him to police station right from the village. He has admitted that he met Shivan Deo at police station but has said that when he had reached the police Station Shivan Deo was not there and when he was giving statement before the police he saw Shivan Deo crossing a 'chauraha' and he then told officer-in-charge of police station to call Shivan Deo also because he was one of the 'punches' and then the officer-in-charge by sending a Constable called Shivan Deo at police station and by the time Shivan Deo reached there his statement had already been completed and the police recorded the statement of Shivan Deo also and thereafter, Shivan Deo left the police station According to him, he had no talk with Shivan Deo either at the place of occurrence or at police station. He has further said that he did not ask anybody about the occurrence because he had himself seen the occurrence. He had denied the suggestion of defence that in his re-statement before police he had stated that on 'hulla' he reached the place of occurrence and came to know about the occurrence from Shivan Deo. He has also denied the suggestion that in his fardbeyan he has stated that all of a sudden he came to know about the occurrence, therefore, he was lodging the fardbeyan. From the perusal of his fardbeyan (Ext. 2), I find that in last para he has stated that he came to know about the occurrence all of a sudden. Arjun Prasad (PW 12), who is the 10 of this case, in his evidence has said that when he recorded the fardbeyan of informant witness Shivan Deo (PW 1) was present there and it is not a fact that at that time Shivan Deo was found crossing a 'chauraha' and informant then suggested to him that Shivan Deo be also called for because he was one of 'punches' and he then sent a Constable to call for Shivan Deo. He has further said that it is not a fact that when Shivan Deo came to police station by that time the fardbeyan of informant was almost complete. He has further said that it is not a fact that when Shivan Deo came to police station by that time the fardbeyan of informant was almost complete. On the contrary, he has said that informant and Shivan Deo both had come to police station together and informant in his re-statement has stated that he reached the place of occurrence on hearing 'hulla' and came to know about the occurrence from Shivan Deo. The IO has further stated that informant in his restatement had not stated that when he was going to Sukhet from his village he reached the place where a 'panchayati' was being held and informant did not tell that 'punches' gave verdict in favour of deceased which was not accepted by appellant Lelai Mahto, who ordered to kill deceased Sundarlal Mahto on which all the appellants came there armed with weapons. According to him, informant had also not stated before him that deceased on seeing appellants fled away and he was being chased by appellants and witnesses also ran after the appellants and deceased fell down in the field of one Lakhan Mahto when he was assaulted by appellants. This evidence of IO creates a serious doubt on the evidence of informant that he had seen the occurrence with his own eyes. On the other hand, it appears that in his earlier statement he had stated that he came to know about the occurrence from Shivan Deo and it further appears that with Shivan Deo he had gone to police station to lodge the FIR. Besides this there is a marked difference in the evidence in Court and in his fardbeyan on the manner of occurrence. He, in his evidence, has stated that when the deceased saw the appellants armed with weapons he stated running and when he fell down in the field of Lakhan Mahto he was assaulted by appellants but in his fardbeyan he has stated that the deceased was assaulted at the place where 'panchayati' was being held and after assault when he started running he fell down and died. 8. 8. Now, coming to the evidence of Shivan Deo (PW 1), I find that he in his evidence has said that on the day of occurrence at about 8.00 a.m. he had gone to village Sukhet in a 'panchayati' which was convened in respect of a dispute over a mango tree between appellant Lelai Mahto on one side and deceased Sundarlal Mahto, Nandlal Mahto (PW 8), Chingi Mahto (PW 5) on other side and the 'punches' gave verdict in favour of deceased Sundarlal Mahto but this verdict was not accepted by appellant Lelai Mahto and he then pushed deceased by placing his hand in his neck and thereafter, ordered his men to kill the deceased on which appellants Jagdish Mahto, Badri Mahto, Siaram Mahto and Jagdish Thakur armed with 'gransa' and appellants Tetar Mahto, Mahadeo Mahto, Sadhu Yadav and Sitaram Mahto armed with 'lathis' and appellant Lelai Mahto himself armed with 'gransa' and 'bhala' became ready to assault the deceased, who seeing the appellants started running but the appellants chased him and when the deceased fell down in the field of one Lakhan Mahto appellant Lelai Mahto gave a 'bhala' blow on his neck, appellant Jagdish Thakur gave a 'gransa' blow on his neck and appellant Jagdish Mahto gave a 'gransa' blow on the finger of his left hand and appellant Badri Mahto also assaulted him with 'gransa'. When Chingi Mahto, Nandlal Mahto and Sukhdeo Mahto tried to save the deceased they were also assaulted by the appellants. He has said that fardbeyan of this case was recorded in his present on which he put his signature (Ext.1) as witness. In cross-examination, he has said that he does not remember whether appellant Jagdish Thakur had deposed against him in a proceeding under Section 107, Cr. PC between him and his cousin Ashrfi Deo one side and one Ram Sharan Deo on the other side. He -has further stated that he does not remember whether in the year 1956 appellants Mahadeo Mahto, Sitaram Mahto and father of appellant Mahadeo Mahto had filed a title suit against Most. Gangia. PC between him and his cousin Ashrfi Deo one side and one Ram Sharan Deo on the other side. He -has further stated that he does not remember whether in the year 1956 appellants Mahadeo Mahto, Sitaram Mahto and father of appellant Mahadeo Mahto had filed a title suit against Most. Gangia. He has admitted that in the year 1973 one Ram Sharan Deo had filed a partition suit against him, Asharfi Deo and some others but he does not remember whether in that case appellant Mahadeo Mahto had deposed against him and deceased Sundarlal Mahto and Satyadeo Mahto (PW 2) had deposed in his favour. He has also denied to remember a proceeding between him and appellant Jagdish Thakur prior to occurrence of this case. In para 11 of his evidence he has stated that since one year before his giving evidence (he was examined on 24.11.1983) his memory has become weak. In para 19 of is cross-examination, he has said that he does not remember whether he had stated before police hat he was also one of the 'punches' and about the place where the panchayati' was being held but has said that not had stated that while being chased by the appellant the deceased fell down in the field of Lakahn Mahto where he was assaulted but Arjun Prasad (PW 12), the IO of this case, has said that this witness had not stated before him that he was also one of the Punches in 'panchayati' and had also not stated that when deceased was running away one fell down in the field of Lakhan Mahto where he was assaulted and the appellant had chased him. This evidence of IO coupled with the own admission of this witness that since one year prior to giving his evidence his memory has become weak and his admission that he does not remember a number of other facts as to his enmity with appellants, his evidence of being an eyewitness to the occurrence does not appear to be trust-worthy. 9. 9. Satyadeo Mahto (PW 2) in his evidence has said that on the day of occurrence he and others were holding a 'panchayati' which was convened to decide a dispute between the deceased Sundarlal Mahto and appellant Lelai Mahto in respect of a mango tree and when the 'punches' decided the dispute in favour of deceased Sundarlal Mahto appellant Lelai Mahto refused to accept the decision of 'punches' and he pushed the deceased by putting his hand on neck and thereafter, deceased started running and the appellants chased him. About the arms he has said that appellant Lelai Mahto was armed with a 'bhala' in one hand and a 'gransa' in the other hand, appellants Jagdish Thakur, Jagdish Mahto, Badri Mahto and Siaram Mahto were armed with 'gransa' and remaining appellants were armed with 'lathis' and when the deceased fell down in the field of Lakhan Mahto appellant Lelai Mahto gave a 'bhala' blow on the neck of the deceased and Jagdish Thakur also gave a 'gransa' blow on the neck of the deceased and when witnesses, namely, Nandlal Mahto, Chingi Mahto and Sukhdeo Mahto tried to rescue the deceased they were also assaulted by the appellants by 'gransa' and 'lathis'. He has admitted that deceased was his 'sala'. He has further admitted that wife of deceased Most. Lukhiya, after the occurrence, had filed a criminal case against appellants Badri Mahto, Siaram Mahto, two wives of appellant Lelai Mahto in which he and witnesses namely Chingi Mahto and Nandlal Mahto had deposed in favour of Most. Lukhiya. In para 22 of his evidence, he has said that he does not remember whether in his earlier statement before police he had stated that deceased and appellant Lelai Mahto both were putting their respective claims over a mango tree but had said that he was one of 'punches' and appellants chased the deceased and when deceased fell down in the field he was assaulted by appellants but Arjun Prasad (PW 12), the IO of this case, in his evidence has stated that this witness had not stated before him that appellant Lelai Mahto and deceased Sundarlal Mahto were claiming a mango tree and this witness was also one of the 'punches' and he had also not stated that appellant chased the deceased, who fell down in the field of Lakhan Mahto where he was assaulted by the appellants. The IO has further stated that this witness had not stated that the deceased was assaulted by appellant Jagdish Thakur by 'gransa' on his neck, witness Nandlal Mahto was assaulted by appellant Badri Mahto by 'gransa' and appellants Siaram Mahto and Badri Mahto assaulted Chingi Mahto by 'gransa' and appellants Mahadeo Mahto and Sitaram Mahto assaulted Sukhdeo Mahto with 'lathis'. 10. Sukhdeo Mahto (PW 3), who is son of Chingi Mahto (PW 5), in his evidence has stated that on the day of occurrence, he was present at the place where a 'panchayati' was being held in order to decide the dispute between the deceased and appellant Lelai Mahto over the matter of a mango tree and when the 'punches' declared the right of deceased in respect of the mango tree appellant Lelai Mahto refused to accept the decision and pushed the deceased by putting his hand on his neck and ordered to kill him on which appellants Siaram Mahto, Jagdish Thakur, Jagdish Mahto and Badri Mahto armed with 'gransa' and appellants Mahadeo Mahto, Sitaram Mahto, Tetar Mahto and Sadhu Yadav armed with 'lathis' came there. The deceased on seeing the appellants armed with weapons started running and the appellants chased him and at that time appellant Lelai Mahto was armed with a 'bhala' in his one hand and 'gransa' in other hand and when deceased fell down in the field of Lakhan Mahto appellant Lelai Mahto gave a 'bhala' blow on the neck of the deceased, appellant Jagdish Thakur gave a 'gransa' blow on the neck of deceased and appellant Jagdish lv1ahto gave a 'gransa' blow on the finger of left band of deceased and appellant Badri Mahto also hurled 'gransa' but he could not see whether that hit the deceased or not and when he, his father and Nandlal Mahto tried to save the deceased the appellants Jagdish Mahto, Badri Mahto and Siaram Mahto gave a 'gransa' blow on the back of Nandlal Mahto and appellants Mahadeo Mahto and Tetar Mahto assaulted Nandlal Mahto with 'lathis' on his right shoulder, appellant Jagdish Mahto assaulted Chingi Mahto with the back portion of 'gransa' on his right hand and appellant Tetar Mahto assaulted him with 'lathis'. In cross-examination, he has admitted that deceased has drawn his attention whether in his earlier statement he had stated that the appellants armed with various weapons chased the deceased, who fell down in the field of Lakhan Mahto where he was assaulted and his attention has further been drawn on the vivid description of the role played by each one of the appellants in assaulting the deceased and other persons and in answer, he has said that he had stated all these facts in his earlier statement but Arjun Prasad (PW 12), the IO, in evidence has stated that this witness had not stated before him that all the appellants variously armed with weapons had chased the deceased and he had also not stated before him that deceased fell down in the field of Lakhan Mahto where he was assaulted by the appellants and he had not stated before him that witness Nandlal Mahto received 'gransa' blows on his back and appellants Mahadeo Mahto and Tetar Mahto had assaulted Nandlal Mahto with 'lathi' on his right shoulder and Chingi Mahto received injuries on his head and right hand and appellant Badri Mahto with back portion of 'gransa' and appellant Jagdish Mahto with 'gransa' had assaulted Chingi Mahto and appellant Tetar Mahto assaulted Chingi Mahto with 'lathi'. 11. Jugeshwar Mahto (PW 4) in his evidence has said that on the day of occurrence at about 8.00 a.m. a 'panchayati' to decide the dispute in respect of a mango tree between the deceased and appellant Lelai Mahto was being held and he along with others was present in that 'panchayati' and when the 'punches' gave their verdict in favour of deceased, appellant Lelai Mahto refused to accept the decision of 'punches' and pushed the deceased and ordered to kill him on which remaining appellants, who were present in the vicinity of 'panchayati' came there and appellants Jagdish Thakur, Jagdish Mahto, Badri Mahto and Siaram Mahto were armed with 'gransa' and one among the appellants handed over the 'bhala' and one 'gransa' to appellant Lelai Mahto and remaining appellants were armed with 'lathis'. He is the only witness, who has said that one among the appellants handed over a 'bhala' and 'gransa' to appellant Lelai Mahto. He has not named the appellant, who handed over these weapons to appellant Lelai Mahto. He is the only witness, who has said that one among the appellants handed over a 'bhala' and 'gransa' to appellant Lelai Mahto. He has not named the appellant, who handed over these weapons to appellant Lelai Mahto. No other prosecution witness has stated that at the time of 'panchayati' appellant Lelai Mahto was armed with any weapon. On the other hand, Shivan Deo (PW 1) has categorically stated that when appellant Lelai Mahto pushed the deceased by pressing his hand on his neck, he was not armed with any weapon. This witness (PW 4) has further stated that the deceased on seeing the appellants armed with weapons started running but the appellant chased him and when the deceased fell down in the field of Lakhan Mahto, he was assaulted by the appellant. According to him, appellants Lelai Mahto and Jagdish Thakur assaulted the deceased on his neck by 'bhala' and 'gransa' respectively and appellant Jagdish Mahto gave a 'gransa' blow on the finger of his hand and appellant Badri Mahto also hurled gransa' but he could not see whether that hit the deceased or not and when Chingi Mahto, Nandlal Mahto and Sukhdeo Mahto tried to rescue the deceased appellants Jagdish Mahto, Badri Mahto and Siaram Mahto assaulted Nandlal Mahto with 'gransa' and appellants Mahadeo Mahto and Tetar Mahto with lathis assaulted him appellants Jagdish Mahto, Siaram Mahto and Badri Mahto assaulted Chingi Mahto with 'lathis'. In cross-examination, he has admitted that he had no concern with the 'panchayati' and he was simply a viewer and after occurrence he went to his house. In para 10 of his evidence, he has stated that on the day of occurrence at about 10-11 a.m., his statement was recorded by police. His attention has been drawn whether in his earlier statement he had named appellants Tetar Mahto and Siaram Mahto among the accused-persons to which he has replied in affirmative. In para 10 of his evidence, he has stated that on the day of occurrence at about 10-11 a.m., his statement was recorded by police. His attention has been drawn whether in his earlier statement he had named appellants Tetar Mahto and Siaram Mahto among the accused-persons to which he has replied in affirmative. His attention has further been drawn whether in his earlier statement, he had stated that appellants Badri Mahto, Jagdish Mahto and Siaram Mahto were armed with 'gransa' and appellant Mahadeo Mahto, Tetar Mahto and Sadhu Yadav were armed with 'lathis' and he had also stated that when the deceased started running the appellants chased him and he and another witness also followed him and when deceased fell down in the field of Lakhan Mahto he was assaulted there and, he had stated that appellant Tetar Mahto with 'bhala' and appellant Jagdish Thakur with 'gransa' assaulted the deceased on his neck and appellant Jagdish Mahto gave 'gransa' blow on the finger of hand of deceased. Arjun Prasad (PW 12), the IO, in his evidence has stated that this witness had not stated before him that appellant Siaram Mahto was also along with accused-persons and he was armed with a 'gransa' and he had not stated that appellants Mahadeo Mahto and Sitaram Mahto were armed with 'lathis' and someone among the accused persons handed over 'bhala' and 'gransa' to appellant Lelai Mahto and this witness had not stated that appellant Lelai Mahto pushed the deceased by putting his hand on his neck and had not stated that the deceased on seeing the appellants armed with weapons started running and the appellants chased him and when he fell down in the field of Lakhan Mahto, the deceased was assaulted by appellants. The IO has made it clear by deposing that this witness had not stated before him that appellant Lelai Mahto with 'bhala' and Jagdish Thakur with 'gransa' assaulted the deceased on his neck and appellant Jagdish Mahto gave a 'gransa' blow on the finger of hand of deceased. The IO has made it clear by deposing that this witness had not stated before him that appellant Lelai Mahto with 'bhala' and Jagdish Thakur with 'gransa' assaulted the deceased on his neck and appellant Jagdish Mahto gave a 'gransa' blow on the finger of hand of deceased. He has further stated that this witness had not stated that when Nandlal Mahto, Sukhdeo Mahto and Chingi Mahto tried to rescue the deceased Nandlal Mahto was assaulted by appellants Jagdish Mahto, Badri Mahto, Siaram Mahto, Mahadeo Mahto and Tetar Mahto and Chingi Mahto was assaulted by appellants Jagdish Mahto, Siaram Mahto and Badri Mahto and this witness had not stated that he was also present at the place where the 'panchayati' was being held. On the other hand, the IO has said this witness has stated before him that during 'panchayati' appellant Lelai Mahto was going to his house for bringing money. 12. Chingi Mahto (PW 5) in his evidence has stated that on the day of occurrence, he was near a mango tree where a 'panchayati' was being held to decide the dispute between appellant Lelai Mahto and deceased Sundarlal Mahto in respect of that mango tree and when the 'punches' decided the matter in favour of deceased Sundarlal Mahto, it was not accepted by appellant Lelai Mahto, who thereafter, pushed the deceased and ordered to kill him on which all the remaining appellants came there. He has further said that appellant Lelai Mahto was armed with 'bhala' and 'gransa', appellants Jagdish Thakur, Jagdish Mahto, Badri Mahto and Siaram Mahto were armed with 'gransa' and remaining appellants were armed with 'lathis'. The deceased on seeing the appellants armed with weapons started running and the appellants chased him and when the deceased fell down in the field of Lakhan Mahto appellant Lelai Mahto with 'bhala' and appellants Jagdish Thakur, Jagdish Mahto and Badri Mahto with 'gransa' assaulted him causing his death at the spot. He has further stated that when he, Nandlal Mahto and Sukhdeo Mahto tried to rescue the deceased they were also assaulted by the appellants. He has further stated that when he, Nandlal Mahto and Sukhdeo Mahto tried to rescue the deceased they were also assaulted by the appellants. According to him, he was assaulted by appellants Jagdish Mahto, Siaram Mahto and Badri Mahto with 'gransa' and similarly Nandlal Mahto was also assaulted by these three appellants with 'gransa' and appellants Mahadeo Mahto and Tetar Mahto assaulted Nandlal Mahto with 'lathi' whereas Sukhdeo Mahto was assaulted by appellants Sitaram Mahto and Tetar Mahto with 'lathis'. In cross-examination, he has admitted that deceased was son of his stepbrother and witness Sukhdeo Mahto (PW 3) is his son. His attention has been drawn whether in his earlier statement, he had stated that the appellants after chasing the deceased assaulted him in the field of Lakhan Mahto where the deceased fell down and he, Sukhdeo Mahto and Nandlal Mahto were also assaulted by the appellants. Although he has replied that he had stated like so in his earlier statement but then Arjun Prasad (PW 12), the IO, in his evidence has stated that his witness in his earlier statement had not stated that the appellants chased deceased Sundarlal Mahto and when the deceased fell down in the field of Lakhan Mahto he was assaulted by appellants and he had not stated that Sukhdeo Mahto and Nandlal Mahto were also assaulted in that field. He has further stated that this witness had not stated who among the appellants with which weapon assaulted witness Nandlal Mahto and he had not stated in his earlier statement that appellant Tetar Mahto also assaulted witness Sukhdeo Mahto. 13. Nandlal Mahto (PW 8) claiming himself to be an eye-witness to the occurrence has said that on the day of occurrence, a 'panchayati' was being held to decide a dispute between appellant Lelai Mahto and deceased Sundarlal Mehto in respect of a mango tree and when the 'punches' gave verdict in favour of deceased, the appellant Lelai Mahto refused to accept this decision of 'punches' and pushed the deceased and ordered to kill him on which appellant Jagdish Thakur, Jagdish Mahto Badri Mahto and Siaram Mahto came armed with 'gransa' and remaining appellants came there with 'lathis' and someone among the appellants handed over one 'gransa' and one 'bhala' to appellant Lelai Mahto. The deceased started running and the appellants chased him. He, Chingi Mahto and Sukhdeo Mahto also ran after the appellants. The deceased started running and the appellants chased him. He, Chingi Mahto and Sukhdeo Mahto also ran after the appellants. When the deceased fell down in the field of Lakhan Mahto appellant Lelai Mahto gave a 'bhala' blow on his neck and appellant Jagdish Thakur gave a 'gransa' blow on his neck and appellant Jagdish Mahto gave 'gransa' blow on the finger of left hand of deceased and appellant Badri Mahto assaulted the deceased with 'gransa'. When he, Chingi Mahto and Sukhdeo Mahto tried to rescue the deceased, he was assaulted by the appellants Jagdish Mahto, Badri Mahto and Siaram Mahto with 'gransa' and by appellants Tetar Mahto and Sitaram Mahto with 'lathis'. Appellants Jagdish Mahto, Siaram Mahto and Jagdish Thakur assaulted Chingi Mahto with 'gransa' and appellant Mahadeo Mahto, Sitaram Mahto and Sadhu Yadav assaulted Sukhdeo Mahto with 'lathis'. He has admitted that deceased was his nephew. His attention has been drawn to the fact that whether in his earlier statement, he had stated that on seeing the appellants armed with' weapons decease Sundarlal Mahto started running and the appellants chased him and he, Chingi Mahto and Sukhdeo Mahto also ran after the appellants and when deceased fell down in the field of Lakhan Mahto, he was assaulted by the appellants there. Arjun Prasad (PW 12), the IO, in his evidence has said that this witness had not stated before him that on seeing' the appellants armed with weapons, the deceased started running away and when the deceased fell down in the field of Lakhan Mahto, the appellants assaulted him. Arjun Prasad (PW 12), the IO, in his evidence has said that this witness had not stated before him that on seeing' the appellants armed with weapons, the deceased started running away and when the deceased fell down in the field of Lakhan Mahto, the appellants assaulted him. The evidence of IO further shows that this witness had not stated in his earlier statement that a 'panchayati' between the deceased and appellant Lelai Mahto was being held in respect of a mango tree, this witness and the persons named by him were present at that 'panchayati', appellant Lelai Mahto had 'given a 'bhala' blow on the neck of deceased, appellant Jagdish Mahto had assaulted the deceased with 'gransa' on his left hand, he, Chingi Mahto and Sukhdeo Mahto tried to rescue the deceased, the 'punches' gave a favourable verdict, someone from the appellants handed over a 'bhala' and 'gransa' to appellant Lelai Mahto, he and other witnesses were assaulted in the field of Lakhan Mahto, appellant Jagdish Thakur gave a 'gransa' blow on the neck of deceased, appellants Tetar Mahto and Mahadeo Mahto assaulted him with 'lathis', appellants Badri Mahto and Siaram Mahto assaulted Chingi Mahto with 'gransa', appellant Tetar Mahto assaulted Sukhdeo Mahto with 'lathi', etc. 14. Arjun Prasad (PW 12), the IO, in his evidence has stated that on 14.6.1979 at about 10.15 a.m. informant chaukidar Janak Mandal came to police station and informed about the occurrence and he then in presence of Shivan Deo and Ajay Kant recorded the fardbeyan (Ext.5). He inspected the place of occurrence on the same day at about 11.30 a.m. and recorded the statement of injured persons and prepared injury reports (Ext. 6 to 6/2) and sent the injured persons to Jhanjharpur Government Hospital for treatment. He has further said that he found the dead body of the deceased in the field of Baghru Lal Mandal, father of Lakhan Mandal and prepared an inquest report (Ext. 7) and collected blood-stained soil from the place of occurrence and prepared a seizure-list (Ext.8). In cross-examination, he has said that he did not find any mark of trampling where the 'panchayati' was said to have been held and in between the way where the 'panchayati' was being held and the field of Lakhan Mahto, he did not find any foot print showing that any chase as made on that way. 15. In cross-examination, he has said that he did not find any mark of trampling where the 'panchayati' was said to have been held and in between the way where the 'panchayati' was being held and the field of Lakhan Mahto, he did not find any foot print showing that any chase as made on that way. 15. Three witnesses have been examined on behalf of appellant. Lakhan Mahto (DW 1) has said that on 14.6.1979 at 8.00 a.m., no 'panchayati' was held to decide the dispute in respect of a mango tree between the deceased and appellant Lelai Mahto and nobody had chased the deceased on that day and neither the deceased nor Nandlal Mahto, Chingi Mahto and Sukhdeo Mahto were assaulted in his field. He has further said that on that day at the time of sunrise, he heard 'hulla' that dead body of deceased was lying in his field and somebody after committing his murder had thrown the dead body in his field and when he went to his field, he found the dead body of deceased with a number of injuries on his person. He has submitted that he was not examined by police. He has further admitted that appellant Mahadeo Mahto is his nephew and appellant Sitaram Mahto is his cousin. Bodh Mahto (DW 2) has also said that no 'panchayati' as alleged by prosecution on the day of occurrence was held in his village and the appellants had not chased the deceased and they had not assaulted him in the field of Lakhan Mahto. In cross-examination, he has admitted that an old dispute between the parties is existing in respect of a mango tree. Shankar Prasad Sinha (DW 3), who is SI of police, in his evidence has stated that on 15.6.1979, he was posted at Laheriasarai police station and on that day, he received on OD slip from Laheriasarai Hospital and he went to DMCH and recorded the fardbeyan of Nandlal Mahto (PW 8). He has proved this fardbeyan (Ext. A) and the endorsement (Ext. B) of Deo Nandan Singh, the then officer-in-charge, Laheriasarai police station. 16. The defence has also brought on record a number of documents showing that the witnesses are interested in each other and are hostile to appellants. Ext. He has proved this fardbeyan (Ext. A) and the endorsement (Ext. B) of Deo Nandan Singh, the then officer-in-charge, Laheriasarai police station. 16. The defence has also brought on record a number of documents showing that the witnesses are interested in each other and are hostile to appellants. Ext. J/6 is the deposition of Shivan Deo (PW 1) in Title Suit No. 152/32 of 1956/1958 showing that he deposed in favour of Most. Gangia and according to defence, this title suit was lodged by appellants Mahadeo Mahto, Sitaram Mahto and father of appellant Mahadeo Mahto against Most. Gangia and Shivan Deo (PW 1) in para 1 of his deposition has denied to remember that he had deposed in favour of Most. Gangia. Ext.J/4 is the copy of deposition of Sundarlal Mahto in Case No.84/11 of 1973/76 showing that Sundarlal Mahto, the deceased, had deposed in favour of Shivan Deo (PW 1). Similarly, ExtJ/2 is the copy of deposition of deceased Sundarlal Mahto in a Case No.313/75 against appellant Jagdish Thakur. Ext. J/1 is the copy of deposition of laxmi Narayan Mahto (PW 10) in T.R. Case No. 102/75 showing that this witness had deposed against appellant Jagdish Thakur. Ext. I is the copy of inquiry report submitted by police on a petition filed by Shivan Deo against appellant Jagdish Thakur and others. Ext. H is the copy of report of police for between Rameshwar Mahto on one side and appellants Jagdish Thakur, Mahadeo Mahto and Lelai Mahto on other side in which deceased Sundarlal Mahto, Laxmi Mahto (PW 10) and Chingi Mahto (PW 5) have been shown as witnesses. Ext. G is the copy of fardbeyan lodged by one Mahabir Mahto against appellants Lelai Mahto and Badri Mahto in which deceased Sundarlal Mahto, Nandlal Mahto (PW 8) and Chingi Mahto (PW 5) have been shown witnesses on behalf of informant. Ext. F is the copy of formal FIR of the case. Ext. D is the copy of complaint-petition filed by one Rameshwar Mahto against appellant Jagdish Thakur and others in which deceased Sundralal Mahto, Sukhdeo Mahto (PW 3) and Satyadeo Mahto (PW 2) have been shown as witnesses on behalf of complaint. Ext. C/3 is the certified copy of informatory petition filed by appellant Jagdish Thakur against deceased Sundarlal Mahto and others. Ext. Ext. C/3 is the certified copy of informatory petition filed by appellant Jagdish Thakur against deceased Sundarlal Mahto and others. Ext. C/2 is also copy of informatory petition filed by appellant Jagdish Thakur against deceased Sundarlal Mahto Sukhdeo Mahto (PW 3), Chingi Mahto (PW 5) Nandlal Mahto (PW 8) and others. Ext. C/1 is also copy of informatory petition filed by appellant Lelai Mahto against deceased Sundarlal Mahto, Chingi Mahto (PW 8) and Nandlal Mahto (PW 8) and others. Ext. C is also copy of informatory petition filed by appellant Lelai Mahto against deceased Sundarlal Mahto, Chingi Mahto (PW 5), Nandlal Mahto (PW 8) and others. From those documents, it appears that terms between the parties were hostile much prior to the occurrence. If no inference from these documents is drawn against the prosecution even then I find that in this case besides the informant Janak Mandal (PW 6), Shivan Deo (PW 1), Satyadeo Mahto (PW 2), Sukhdeo Mahto (PW 3), Jugeshwar Mahto (PW 4), Chingi Mahto (PW 5), Nandlal Mahto (PW 8) are claimed to be eye-witnesses to the occurrence. As discussed above, the evidence on record shows that the informant in his earlier statement had stated that he after hearing 'hulla' went to the place of occurrence and came to know about the occurrence from Shivan Deo (PW 1). This has been supported by the IO (PW 12). Under this situation, the claim of informant that he is an eye-witness to the occurrence cannot be accepted. Similarly, the IO in his evidence has clearly stated that none of the witnesses among PWs 1, 2, 3, 4, 5 and 8 in his earlier statement had stated that a 'panchayati' was being held between the deceased and appellant Lelai Mahto and when the verdict of 'panchayati' went against the appellant Lelai Mahto, he ordered other appellants to kill the deceased on which all the appellants came there armed with weapons and they chased the deceased, who on seeing the appellants, started running and when the deceased fell down in the field of Lakhan Mahto, the appellants assaulted him. The evidence of IO completely negatives the genesis of occurrence. Besides this, it makes the evidence of these witnesses, who claim themselves as eye- witnesses quite doubtful because in their earlier statement, they had not stated the manner of occurrence which they have now stated in their evidence. The evidence of IO completely negatives the genesis of occurrence. Besides this, it makes the evidence of these witnesses, who claim themselves as eye- witnesses quite doubtful because in their earlier statement, they had not stated the manner of occurrence which they have now stated in their evidence. It is true that the medical evidence supports that deceased died of injuries caused to him by harp-cutting weapons and it is also true that PWs 3, 5 and 8 had also received injuries but in absence of trustworthy evidence on the point of manner in which the deceased and these witnesses received injuries the case of prosecution cannot be held to be proved beyond all reasonable doubts against the appellants. The order of Court below convicting and sentencing the appellants on such type of evidence cannot be upheld. 17. In the result, both the appeals are allowed. The judgment and order of Court below convicting and sentencing the appellants is hereby set aside. As all the appellants are on bail, they are discharged from the liability of their bail bonds.