Judgment M.L.Visa, J. 1. This appeal is directed against the order and judgment dated 23.5.1989 passed by 7th Addl. Sessions Judge, Arrah in Sessions Trial No. 339/1982 convicting and sentencing both the appellants to undergo R.I. for ten years each under Section 304(2) read with Section 34 of the Indian Penal Code (in short, IPC). 2. The prosecution case in short is that on 16.3.1982 at about 5-6 a.m., the informant Yadunandan Yadava (PW 5) along with his son Kapildeo Yadava (deceased) proceeded from his house to his masuri crop field for cutting the crop and when they were about 10-12 bighas from their field the informant sat in a nearby field for easing himself and his son went to his masuri field. When the deceased son of informant reached his masuri crop field appellant Ram Narayan Singh @ Ram Narayan Yadava and co-accused Shyamdayal Yadav both started assaulting the deceased son with lathis and appellant Prabhudeyal Yadava was standing there armed with a pistol. The informant saw that his son was being assaulted by lathis and he then hurriedly reached his field and raised protest on which both the appellants along with co-accused Shyamdayal Yadava fled away after taking the masuri crop. The informant brought his deceased son to a canal and raised alarm on which villagers, namely, Ram Ayodhaya Yadav (not examined), Jag Narayan Yadav (not examined) and others came there with the help of whom the informant brought his son to Sadar Hospital, Arrah for treatment where his fardbeyan (Ext. 2) was recorded on 17.3.1982 at 8.00 p.m. by S.I. Rajendra Prasad (not examined). On the basis of the fardbeyan, a formal FIR (Ext. 3) against both the appellants and co-accused Shyamdayal Yadav was registered under Sections 307/323/379, IPC. The son of informant was referred to Patna Medical College and Hospital where he succumbed to injuries and Section 302 was added in the FIR. After investigation, police submitted charge-sheet against both the appellants and co-accused Shyamdayal Yadav under Sections 302/379/34, IPC. Cognizance of the case was taken and the case was committed to the Court of Sessions where charges under Sections 302/34, IPC and Section 379, IPC were framed against both the appellants and co-accused Shyamdayal Yadav and charge under Section 27 of Arms Act was framed against appellant Prabhu Dayal Yadava, and they all were put on trial. Cognizance of the case was taken and the case was committed to the Court of Sessions where charges under Sections 302/34, IPC and Section 379, IPC were framed against both the appellants and co-accused Shyamdayal Yadav and charge under Section 27 of Arms Act was framed against appellant Prabhu Dayal Yadava, and they all were put on trial. The case of appellants before the trial Court was total denial of charges and their false implication on account of previous enmity with the informant. After trial, both the appellants and co-accused Shyamdayal Yadav were found guilty under Sections 304(2)/34, IPC and accordingly, they were convicted and sentenced to undergo RI for a period of ten years each. The appellants have not found guilty under Section 379, IPC and they have been acquitted for this charge. 3. In order to substantiate the charge against the appellants the prosecution has examined nine witnesses. Yadunandan Yadava (PW 5) is informant, Ram Bachan Yadava (PW 1), Shri Ram Singh (PW 3), Radha Mohan Singh (PW 4) and Ram Bilash Singh (PW 6) are said to be the eye-witnesses to the occurrence. Ram Bahal Singh (PW 2) is said to have been assaulted by the appellants. Dr. Upendra Prasad Himansu (PW 7) had examined Ram Bahal (PW 2). Murat Ram (PW 8) and Ram Naresh (PW 9) are formal witnesses who have proved fardbeyan (Ext. 2), formal FIR (Ext. 3), post mortem examination report (Ext. 6) and inquest report (Ext. 4). Ram Bahal Singh (PW 2) has said that on one day when he was at his house both the appellants came there and told him that they had already assaulted one man and they will assault him also and thereafter the appellants Ram Narayan Singh and co-accused Shyamdayal Yadava assaulted him with lathis and when the witnesses assembled there, the assailants fled away. Dr. Upendra Prasad Himansu (PW 7) is the doctor who on 22.3.1982 had examined Ram Bahal Yadava (PW 2) and found a simple injury on his left shoulder which, according to him, was caused by hard and blunt substance which may be a lathi. In the present case, the appellants were not charged for causing injury to Ram Bahal Yadava (PW 2). In the present case, the appellants were not charged for causing injury to Ram Bahal Yadava (PW 2). The evidence of PW 2 is not on the point of occurrence and it is entirely on a different point that on the day of occurrence he was also assaulted by one of the two appellants and one co-accused of this case. He has simply said that at the time of assault on him the assailants said that they had already assaulted one man but he does not say that the assailants had disclosed the name of that man. So I find that the evidence of PW 2 and PW 7 does not in any way support the case of prosecution because it is entirely on a different point. 4. Yadunandan Yadava (PW 5), the informant, in his evidence has stated that at the time of occurrence, he was easing himself by sitting in a field situate at a distance of 50 yards from his own field where his deceased son went where he was assaulted by appellant Ram Narayan Singh @ Ram Narayan Yadava and co-accused Shyamdayal Yadava with lathi and at that time appellant Prabhudeyal Yadava @ Prabhu Yadava was standing there with a pistol and he was instigating the assailants. He has further stated that he by raising hulla went to his field when the appellants and co-accused Shyamdayal Yadava fled away and he found that his son was lying unconscious in the field after receiving injuries. About the masuri crop, he has stated that some of the crop was taken away by the appellants. He has added that his son was brought to Arrah Sadar Hospital where his fardbeyan was recorded. About the death of his son, he has stated that his son sent to Patna Medical College and Hospital, Patna where he died. 5. Ram Bachan Yadava (PW 1) has said that at the time of occurrence, he was in his field when he heard hulla and he then went to the field of deceased Kapildeo Yadava where he found appellant Ram Narayan Singh @ Ram Narayan Yadava and co-accused Shyamdayal Yadava assaulting the deceased with lathis and appellant Prabhudeyal Yadava @ Prabhu Yadava was standing there with a pistol and was not allowing anybody to rescue the deceased. In para 3 of his evidence he has stated that appellant Ram Narayan Singh @ Ram Narayan Yadava and co-accused Shyamdayal Yadava were cutting the masuri crop of deceased Kapildeo Yadava and when the deceased asked them not to do so, he was assaulted. In cross-examination, he has stated that he was the first man to reach the place of occurrence and when he reached the field of Kapildeo Yadava he found him lying on the ground and the assailants had fled away. In para 6 of his evidence, he has stated that the masuri crop which was cut from the field was found lying in the field itself. This is against the case of prosecution that the appellants while leaving the place of occurrence had taken away the masuri crop. The evidence of this witness that when he reached the place of occurrence, he found the deceased lying injured in the field and by that time the assailants had already fled away makes his earlier evidence doubtful that he saw the deceased being assaulted by appellant Ram Narayan Singh @ Ram Narayan Yadava and co-accused Shyamdayal Yadava. 6. Shri Ram Singh (PW 3) in his evidence has stated that on hearing hulla when he went to the field of deceased Kapildeo Yadava he saw appellant Ram Narayan Singh @ Ram Narayan Yadava and co-accused Shyamdayal Yadava assaulting the deceased with lathi and appellant Prabhudeyal Yadava @ Prabhu Yadava was standing there with a pistol. In para 5 of his evidence, he has stated that when he reached the place of occurrence, he found the deceased lying injured in the field. He has also stated that the masuri crop which was cut from his field was found lying there. He has further said that besides him Ram Bachan Yadava (PW 1), Radha Mohan Singh (PW 4) and Ram Bilash Singh (PW 6) had also reached the place of occurrence and on seeing them the appellants along with their companion fled away but Radha Mohan Singh (PW 4) and Ram Bilash Singh (PW 6) have stated that when they reached the place of occurrence, they saw the deceased lying injured in the field and appellants and their companion were fleeing away from there. If as per the evidence of Shri Ram Singh (PW 3) when these two witnesses also went to the place of occurrence along with PW 3, they must have seen the occurrence but they did not see it which is manifest from their evidence. Apart from this, as stated earlier, the own admission of PW 3 that when he reached the place of occurrence, he found the deceased lying injured in the field itself shows that he is not an eye-witness to the occurrence. 7. In the fardbeyan (Ext. 2), the informant has stated that when he saw that his son was being assaulted, he went to the place of occurrence and asked the appellants why they were assaulting his son on which both the appellants and co-accused Shyamdayal Yadava fled away and he thereafter brought his son to a canal and raised hulla on which witnesses, namely, Ram Ayodhaya and Jag Narayan Yadava reached there. But in his evidence, he has said that he raised hulla after reaching the place of occurrence itself. Out of two witnesses named in the fardbeyan, none has been examined and the witnesses who have been examined claiming themselves to be the eye-witnesses to the occurrence are not named in the fardbeyan. Besides this, their evidence do not inspire confidence that they were eye-witnesses to the occurrence in view of their contradictory evidence on this point. The fardbeyan (Ext. 2) shows that it was recorded on 17.3.1982 at 8.00 p.m. at Sadar Hospital, Arrah whereas the occurrence is said to have taken place on 16.3.1982 at 6.00 a.m. The informant in his evidence has said that his son died 24 hours after the occurrence and in para 7 of his evidence, he has stated that his fardbeyan was recorded after the death of his son but again he has changed this statement by stating that his fardbeyan was recorded 24 hours after the occurentire case of prosecution quite doubtful. Besides this, the genesis of occurrence which is said to be cutting and removal of paddy crop has also not been found true by the Court below and the appellants have been acquitted for the offence under Section 379, IPC. 8. Besides this, the genesis of occurrence which is said to be cutting and removal of paddy crop has also not been found true by the Court below and the appellants have been acquitted for the offence under Section 379, IPC. 8. Considering all the facts as stated above, I find that the case of prosecution has not been proved beyond all reasonable doubts against the appellants and the order and judgment of the Court below convicting and sentencing the appellants cannot be sustained. 9. In the result, this appeal is allowed. The judgment and order of the Court below convicting and sentencing both the appellants is hereby set aside. The appellants, who are on bail, are discharged from the liability of their bail bonds.