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2000 DIGILAW 860 (PAT)

Nand Kishore @ Mushan Mahto v. State of Bihar

2000-07-10

M.L.VISA, R.N.PRASAD

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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 appeal arise out of the same judgment and order dated 22nd December, 1996 passed by 1st Additional Sessions Judge, Munger, in Sessions Trial No. 92 of 1978 convicting and sentencing all the appellants to undergo imprisonment for life under Section 302/149 of the Indian Penal Code (in short, I.P.C.), R.I. for one year each under Section 324/149 IPC. Appellant Mithilesh Singh has further been convicted and sentenced to undergo imprisonment for life under Section 302 IPC and appellants. Hari Singh, Rajo Singh, Ram Padarath Pandey, Kamla Singh, Gauri Singh, Shiv Balak Paswan, Dharam Manjhi, Bijay Kumar, Sadashiv Paswan and Nand Kishore Mahto alias Mushan Mahto have been further convicted and sentenced to undergo imprisonment for life under Section 302/34 IPC. The different sentences passed against the appellants have, however, been ordered to run concurrently. 2. The case of prosecution as stated in the Fardbeyan (Ext.3) of informant Nageshwar Singh (PW 12) recorded on 12.9.77 at 12.30 hours by S.I.S. Pathak (not examined), in short, is that on 12.9.77 at about 7 a.m. deceased Raj Ballav Singh, brother of informant, along with deceased Birendra Singh, Raj Kumar Mahto (PW 9) and Rameshwar Mahto (not examined) were ploughing the land bearing Plot No. 2744 Under Khata No. 6 situate towards north of Village Bellao, P.S. Barbigha, District Munger. Yamuna Singh, uncle of informant, and other villagers are said to be the 'Bataidars' of this land. Informant (PW 12) at that time was repairing ridge in this field. At about 9 a.m. all the appellants along with about 50 others variously armed with country made guns, saif, bhala, gransa and lathi came there and started unyoking the ploughs. Yamuna Singh, uncle of informant, and other villagers are said to be the 'Bataidars' of this land. Informant (PW 12) at that time was repairing ridge in this field. At about 9 a.m. all the appellants along with about 50 others variously armed with country made guns, saif, bhala, gransa and lathi came there and started unyoking the ploughs. When the informant stated that he and others were poor 'bataidars' cultivating the land on 'batai since years and why they were being uprooted, co-accused Baldeo Mahto (since dead) ordered his companions to assault on which appellant Hari Singh and co-accused Ram Swarath Singh (since dead) with gransa, appellants Rajo Singh, Gauri Singh, Nand Kishore @ Mushan Mahto and co-accused Ram Priti Singh (since dead) with saif, appellants Ram Padarath Pandey and Kamla Singh with bhala and appellants Shiv Balak Paswan, Dharam Manjhi, Bijay Kumar and Sadashiv Paswan with lathi assaulted the deceased Raj Ballav Singh who died near the western ridge of the field. Appellant Mithilesh Kumar fired from his country made gun on deceased Birendra Singh who fell in the field and instantaneously died there. Appellant Pramod Kumar with gransa and appellants Kamta Singh, Saryug Singh and Nripendra Singh and co-accused Ram Janam Singh (since dead) with lathis assaulted Jagdish Singh (PW 2). Appellant Kameshwar Mahto with sad and appellant Saryug Singh and co-accused Baro Manjhi (since dead) with lathis assaulted Gulam Singh (not examined). Co-accused Mathura Singh (since dead) and appellant Raj Kumar with saif and appellants Sathi Singh, Badi Singh and Jainandan Singh with lathi assaulted Kailash Prasad (PW 8) Appellant Shambhu Pandey and Bijay Kumar with lathis assaulted Rameshwar Mahto (not examined). Appellant Pradeep Paswan assaulted Barhan Manjhi (not examined) with lathi. Appellants Shambhu Pandey and Anandi Singh assaulted the informant with lathi. Thereafter the appellants after cutting the ridges of the field amalgamated it with adjoining plots. On halla witnesses namely, Sheo Deo Singh (PW 1), Surendra Singh (PW 3), Ram Chandra Mahto (PW 4), Ram Bilas Mistri (PW 10), Dhannu Mochi (not examined). Sidheshwar Mahto (not examined) and Yogendra Singh (not examined) came there who also saw the occurrence. The informant in his fardbeyan stated that a case of bataidari was pending in the Court at that time. Sidheshwar Mahto (not examined) and Yogendra Singh (not examined) came there who also saw the occurrence. The informant in his fardbeyan stated that a case of bataidari was pending in the Court at that time. On the basis of fardbeyan formal FIR (Ext.5) was drawn under Sections 147, 148, 302 and 109 IPC and 25 of Arms Act against all the appellants as well as against co-accused persons, namely, Baldeo Mahto, Ram Swarath Singh, Ramprit Singh, Ram Janam Singh, Mathura Singh and Barho Mahto who during the pendency of the trial died. After investigation police submitted chargesheet against the appellants and the aforesaid six co-accused persons. After cognizance the case was committed to the Court of Sessions where charges under Sections 148, 302/149 IPC and 324/149 IPC were framed against all the appellants of Cr. Appeal No. 16/87 and against co-accused Ram Swarath Singh, Ramprit Singh, Ram Janam Singh and Barho Mahto on the allegations of their being members of unlawful assembly armed with deadly weapons and committing the offence of rioting in prosecution of the common object of assembly for committing the murder of Ram Ballav Singh and Birendra Singh and in prosecution of common object of assembly causing hurt to Gulam Singh and Raj Kumar Singh with deadly weapons. A separate charge under Section 302 IPC against appellant Mithilesh Singh @ Mithilesh Kumar Singh @ Mithilesh Mahto for committing murder of Birendra Singh and a separate charge under Section 302/34 IPC against Hari Singh, Rajo Singh, Ram Padarath Pandey, Kamla Singh, Gauri Singh, Shiv Balak Paswan, Dharam Manjhi, Bijay Kumar, Sadashiv Paswan, Nand Kishore @ Mushan Prasad and co-accused Ram Swarath Singh for committing murder of Raj Ballav Singh were framed. The appellants denied the charges and pleaded not guilty. The case of appellants as it appears from the evidence adduced on their behalf as well as from the trend of cross-examination of prosecution witnesses is that they are 'Thikedars' (lessee) of the land and on the day of occurrence the prosecution party came to their field where their plough men were ploughing and members of prosecution party assaulted the plough men of Thikedars on which residents of Mushar Tola came and those residents assaulted the members of prosecution party. After trial, the Court below found the appellants guilty and convicted and sentenced them as indicated above. 3. After trial, the Court below found the appellants guilty and convicted and sentenced them as indicated above. 3. In order to prove its case, the prosecution has examined 15 witnesses Nageshwar Singh (PW 12) is the informant. Ram Sagar Pandey (PW 5) has been tendered. Mohiuddin (PW 15) is a formal witness who has proved the formal FIR (Ext.5), Fardbeyan (Ext.3), inquest report (Ext.6) and seizure list (Ext.7). Ragho Das (PW 6) is a witness on inquest reports which were prepared by police when dead bodies of Birendra Singh and Raj Ballav Singh were seized. He has proved his signatures (Exts.1 and 1/1) on the inquest reports. Dr. Birendra Kumar (PW 14) is the doctor who had examined injured persons, namely, Ram Gulam Singh (PW 1), Jagdish Singh (PW 2), informant (PW 12), Kailash Prasad (not examined) and Rameshwar Mahto (not examined). Sheo Deo Singh (PW 1), Jagdish Singh (PW 2), Sumendra Singh (PW 3), Ram Chandra Mahto (PW 4), Kailash Prasad (PW 8), Raj Kumar Mahto (PW 9), Ram Bilas Mistri (PW 10) and Ram Gulam Singh (PW 11) are said to be eye witnesses to the occurrence. Out of these witnesses P.W.s. 2, 8, 9, 11 and informant (PW 12) are said to have received injuries at the time of occurrence from the side of appellants. Deepa Singh (PW 7), ASI, on the day of occurrence was posted with Magistrate Hari Narayan Prasad and armed police at village Bellao. Hari Narayan Prasad (PW 13) on the day of occurrence was posted as Magistrate in the village Bellao for maintaining law and order in respect of claim of some bataidars for the land belonging to Bibi Sogra Estate. 4. According to the case of prosecution, post mortem examination on the dead bodies of the two deceased was conducted but the prosecution instead of examining any doctor conducting the post mortem examination has brought on record the post mortem examination reports (Ext. 8 and 8/1) which have been admitted under Section 294 of the Code of Criminal Procedure. 4. According to the case of prosecution, post mortem examination on the dead bodies of the two deceased was conducted but the prosecution instead of examining any doctor conducting the post mortem examination has brought on record the post mortem examination reports (Ext. 8 and 8/1) which have been admitted under Section 294 of the Code of Criminal Procedure. Ext.8 is the post mortem examination report in respect of deceased Ram Ballav Singh which shows that amongst ante mortem injuries one incised wound on the back of right upper arm, one punctured wound behind right ear on upper part of neck, one incised wound on right jaw, one incised wound on right side of head, one incised wound on right side back of head and ecchymosis on right upper arm were found and in the opinion of the doctor who conducted post mortem examination the cause of death was haemorrhage and shock caused by these injuries. It further shows that post mortem examination was conducted on 13.9.77 at 12.45 p.m. and the time elapsed since death was within 24 to 36 hours. Ext. 8/1 is post mortem examination report of deceased Birendra Singh and it shows that post mortem examination was conducted at 12.15 p.m. on 13.9.77 and the doctor found fire arm injury on left side of chest with darkened margin and lacerated margin 1 ½ " above left nipple between 3rd and 4th inter costal space 1" to left of sternum with laceration of left lung upper lobe with blood and blood clots in left chest cavity and one bullet was recovered. In the opinion of the doctor conducting the post mortem examination the death was due to shock and haemorrhage caused by these injuries and time elapsed since death was within 24 to 36 hours. Exts. 8 and 8/1 show that death of two deceased was homicidal and time of death corresponds to the time of occurrence as stated by prosecution. Dr. Birendra Kumar (PW 14) is the doctor who had examined injured persons, namely, Ram Gulam Singh (PW 11), Jagdish Singh (PW 2), informant (PW 12), Raj Kumar Mahto (PW 9), Borhan Ravidas (not examined) and Rameshwar Mahto (not examined). Dr. Birendra Kumar (PW 14) is the doctor who had examined injured persons, namely, Ram Gulam Singh (PW 11), Jagdish Singh (PW 2), informant (PW 12), Raj Kumar Mahto (PW 9), Borhan Ravidas (not examined) and Rameshwar Mahto (not examined). According to him, injuries like bruises and incised wound were found on injured persons and he had examined all the injured except Borhan Ravidas and Rameshwar Mahto on 12.9.77 between 3 p.m. and 3.50 p.m. and found the age of injuries within six hours. The injured Borhan Ravidas and Rameshwar Mahto were examined on 13.9.77 between 8.30 a.m. and 8.40 a.m. and the age of injuries was found within 24 hours. The time of receiving injuries by the deceased and other injured persons as disclosed from post mortem examination reports (Exts. 8 and 8/1) and evidence of PW 14 tallies with the time of occurrence as alleged by the prosecution. 5. On the point of place of occurrence the case of prosecution is that the occurrence took place on plot No. 2744 of Khata No.6 situate at Village Bellao, P.S. Barbigha, District Munger as mentioned in Fardbeyan. The prosecution party claims right of bataidari in this land. The fact that this plot belonges to Bibi Sogra Waqf Estate is an admitted fact. It is further admitted that Bibi Sogra Waqf Estate possesses 98 acres of land in the Village Bellao. The prosecution has brought on record the order sheet (Ext. 9) and final order passed by the DCLR (Ext.9/1) of Bataidari Case No. 211 of 1977-78 to prove that Yamuna Singh, uncle of informant was bataidar of plot No. 2744 and during the pendency of the aforesaid case he died issueless and therefore the name of his nephew who is informant of this case was substituted in that case in his place and bataidari right was declared by the DCLR. The defence has filed orders of this Court (Ext. J and H/2) passed in CWJC No. 1518 of 1981 and CWJC No. 2670 of 1982, respectively, to prove that the order of the DCLR (Ext. 9/1) declaring the bataidari right of informant in Plot No. 2744 has been set aside with directions to issue notice to Mutwali of Bibi Sogra Waqf Estate and thereafter decide the matter afresh. J and H/2) passed in CWJC No. 1518 of 1981 and CWJC No. 2670 of 1982, respectively, to prove that the order of the DCLR (Ext. 9/1) declaring the bataidari right of informant in Plot No. 2744 has been set aside with directions to issue notice to Mutwali of Bibi Sogra Waqf Estate and thereafter decide the matter afresh. According to the appellants, on 15.7.77 land measuring 72 acres was settled with Baldeo Mahto, Ramprit Singh, Ram Swarath Singh (who all were co-accused in this case and are dead now), appellant Kameshwar Mahto and two others namely Nageshwar Prasad Singh and Banarsi Prasad Singh by Mutwali of Bibi Sogra Waqf Estate. In support of it the defence has brought on record certified copy of a registered deed of settlement (Ext. F). This deed includes the lands of plot No. 2744. This deed has been proved by Hafij Asrafuddin Ahmad (DW 3). He has further stated that in the year 1966 also a deed of lease was executed in favour of three persons and those three persons were amongst the six persons in whose favour the deed of lease (Ext. F) was executed in the year 1977. Jiauddin Ahmad (DW 4) is the Accountant of Bibi Sogra Waqf Estate and he has proved six receipts (Ext. G to G/5). The defence has brought these receipts in support of its case that payment of lease amount was paid by the appellants to Bibi Sogra Waqf Estate. Bankey Mahto (DW 5) in his evidence has stated that co-accused persons, namely, Baldeo Mahto, Ramprit Singh and Ram Swarath Singh had taken 150 bighas of land on lease from Bibi Sogra Waqf Estate in the year 1976 and again in the year, 1977. They and some others who took lease of 150 bighas of land from Bibi Sogra Waqf Estate and in both the lessee had cultivated the land. The Court below has not relied upon this documentary as well as oral evidence of defence on the point of possession of appellants on plot No. 2744 on the ground that the defence did not bring on record the resolution of Waqf Estate to show that the committee which runs the Waqf Estate ever resolved to settle the land with appellants and the receipts showing payment of lease amount do not bear the seal of Waqf Estate. It has been argued by the prosecution that this Court in the writ application filed against the order of DCLR by which he declared the bataidari right of prosecution party over plot No. 2744 passed order to decide the matter afresh after issuing notices to Mutwali of Waqf Estate which means that this Court did not disturb the bataidari right of prosecution party. This argument does not appear to be convincing. When this Court passed order to decide the matter afresh on the point of bataidari right of prosecution it cannot be said that it accepted the right declared by DCLR. In our opinion the Court below also failed to consider that the prosecution has not brought on record any evidence to prove that the prosecution has got bataidari right over plot No. 2744. Except the order of DCLR (Ext. 9/1) which has been set aside the prosecution party has not brought on record to gnaw that it enjoyed bataidari right over plot No. 2744. To lay a claim in respect of a right does not amount that the claimant has got a lawful right. About the settlement of lease including the land on which the occurrence is said to have taken place by Waqf Estate in favour of co-accused Baldeo Mahto, Ram Swarath Singh and Ramprit Singh, the informant (PW 12) in para 38 of his evidence has clearly stated that he has no knowledge that the Waqf Estate on 1.8.76 has settled all its land in favour of Baldeo Mahto, Ram Swarath Singh and Ramprit Singh. In para 48 of this evidence he has stated that no "Parwana" of Batai had been issued in his favour by Waqf Estate. He has further admitted that since 1977 to 1978 he is not giving any share of agriculture produce to the Estate. Again in para-52 he has stated that he is possession of some receipts for two to three years in support of his giving share of agriculture produce to estate. No such receipts have been filed by the prosecution. The Court below in para-15 of its judgment has observed that while exercising original jurisdiction it was not required to declare right and title of parties over the disputed land and it was only to find out as to who was in actual possession of the dispute plot on the date of occurrence. The Court below in para-15 of its judgment has observed that while exercising original jurisdiction it was not required to declare right and title of parties over the disputed land and it was only to find out as to who was in actual possession of the dispute plot on the date of occurrence. While deciding this issue, as stated above, the Court below has not considered the oral and documentary evidence produced by the appellants in support of their case that on the date and time of occurrence the appellants were in possession of plot No. 2744 where the occurrence is said to have taken place. The Court below has considered the oral evidence of prosecution witnesses and has come to a finding that appellants were aggressors. 6. Now coming to oral evidence on behalf of prosecution we find that there are two sets of witnesses who have given their evidence on the point of occurrence. The first set of witnesses consists of informant Nageshwar Singh (PW 12), Sheo Deo Singh (PW 1), Jagdish Singh (PW 2), Sumendra Singh (PW 3), Ram Chandra Mahto (PW 4), Kailash Prasad (PW 8), Raj Kumar Mahto (PW 9), Ram Bilas Mistry (PW 10) and Ram Gulam Singh (PW 11). Out of these witnesses Jagdish Prasad (PW 2), Kailash Prasad (PW 8), Raj Kumar Mahto (PW 9), Ram Gulam Singh (PW 11) and informant Nageshwar Singh (PW 12) are injured persons. Out of these witnesses Jagdish Prasad (PW 2), Kailash Prasad (PW 8), Raj Kumar Mahto (PW 9), Ram Gulam Singh (PW 11) and informant Nageshwar Singh (PW 12) are injured persons. All these witnesses have stated that at the time of occurrence deceased Ram Ballav Singh, deceased Birendra Singh, Raj Kumar Mahto (PW 9) and Rameshwar Mahto were ploughing the land of plot No. 2744 when all the appellants along with others variously armed came there and co-accused Baldeo Mahto asked to remove the plough and when the prosecution party refused he ordered his companions to assault on which appellants Hari Singh, Rajo Singh, Gauri Singh, Kamla Singh, Ram Padarath Pandey, Bijay Kumar, Dharam Manjhi, Sadashiv Paswan, Shiv Balak Paswan and Nand Kishore alias Mushan Mahto and co-accused Ram Swarath Singh and Ramprit Singh assaulted deceased Ram Ballav Singh with gransa, saif, bhala and lathi, appellant Mithilesh Kumar Singh fired on deceased Birendra Singh from his country made gun causing his death, appellant Pramod Kumar assaulted Jagdish Singh with gransa, appellants Saryug Singh, Nripendra Singh and Kamta Singh and co-accused Ram Janam Singh assaulted Jagdish Singh with lathi, appellant Kameshwar Mailto assaulted Ram Gulam Singh with saif and appellant Saryug Singh and co-accused Barho Manhi assaulted him with lathi, co-accused Mathura Singh assaulted Raj Kumar Mahto with saif, appellants Jainandan Singh and Saho Singh assaulted Kailash. Mahto with lathi and informant Nageshwar Singh, Kailash Prasad and Rameshwar Prasad were assaulted by some of the appellants with lathis. 7. Shiv Deo Singh (PW 1) has admitted that the land on which ploughs were engaged belong to Bibi Sogra Waqf Estate and its Karpadaz Bhattu Mahto had given written order of bataidari for cultivating that land. In para-21 of his evidence he has admitted that Bibi Sogra Waqf Estate possesses 98 acres of land and it continues to be the owner of the land. He has further admitted that on the entire land belonging to Bibi Sogra Waqf Estate he and others are claiming bataidari right. In para-36 of his evidence he has admitted that all the appellants of this case are opposing the bataidari right of prosecution party and there were cases under Sections 144 and 107 Cr.P.C. between the prosecution party and Bibi Sogra Waqf Estate in which all the appellants had taken the side of the Estate. In para-36 of his evidence he has admitted that all the appellants of this case are opposing the bataidari right of prosecution party and there were cases under Sections 144 and 107 Cr.P.C. between the prosecution party and Bibi Sogra Waqf Estate in which all the appellants had taken the side of the Estate. In para-42 of his evidence he has admitted that he also claims bataidari right in 3 bighas of land belonging to Estate. Jagdish Singh (PW 2) has also admitted that he is also claiming his bataidari right in respect of some land belonging to the Estate. He has admitted that he is brother of Ram Gulam Singh (PW 11). In para 33 of his evidence he has admitted that he is one of the accused in the counter case filed by the appellants. Sumendra Singh (PW 3) in his cross-examination has denied that the Magistrate and police deputed in Village had submitted a report that on 10.9.1977 he and others had created an uproar for forcibly removing the plough of Thikedars (Lessee) but again he has admitted that on the basis of that report two proceedings-one under Section 144 Cr.P.C. and another under Section 107 Cr.P.C. were initiated in which he and others, namely, Shiv Deo Singh (PW 1), Nageshwar Singh (PW 12). Raj Kumar Mahto (PW 9) and deceased Ram Ballav Singh were parties. 8. Ram Chandra Mahto (PW 4) has admitted that he has also claimed right of bataidari in some land belonging to Estate. He has further admitted that in one case he was accused along with Kailash Mahto (PW 8) and Raj Kumar Mahto (PW 9). Kailash Prasad (PW 8) in para 33 of his evidence has admitted that he is also claiming right of bataidari. Raj Kumar Mahto (PW 9) in para-12 of his evidence has admitted that he is also a claimant of right of bataidari. In para 13 of his evidence he has admitted that appellants had filed a case in which he along with Kailash Prasad (PW 8), Raj Kumar Mahto (PW 9) and one Shyam Sundar Mahto were accused persons in para 21 he has admitted that he and other members of prosecution party did not allow one Murli Mahto to cultivate the land belonging to the Estate and they will not allow anybody else to do so. Ram Bilas Mistry (PW 10) has also admitted that he is one of the claimants of bataidari in respect of lands of Estate. He has further admitted that prior to the occurrence he had filed a criminal case against some of the appellants but in that case police did not submit chargesheet. He has also admitted that in one case filed by one Dasharath Thakur against some of the appellants he had deposed on behalf of the prosecution. Ram Gulam Singh (PW 11) has admitted that his is the brother of the witness Jagdish Singh (PW 2) and in para 21 he has admitted that his brother Jagdish Singh is accused in counter case. So we find that all witnesses of this set except PW 11 are claiming right of bataidari in the lands of Estate and as stated above PW 11 is own brother of PW 2. The evidence of Raj Kumar Mahto (PW 9) as given in para 21 of his deposition that the prosecution party will not allow anybody to cultivate the lands belonging to Estate is very significant because if falsifies the other witnesses that prior to the date of occurrence there was no dispute over the place of occurrence. On the other hand, it shows the determination of prosecution party for establishing their claim of bataidari on the lands belonging to Estate forcibly. 9. Another set of prosecution witnesses includes Ram Sagar Pandey (PW 5) a constable, ASI Deepa Singh (PW 7) and Hari Narayan Prasad Singh (PW 13) deputed on the date of occurrence as Magistrate in the Village Bellao for maintaining law and order apprehending disturbance created by some persons claiming bataidari right in the lands of Bibi Sogra Waqf Estate. Ram Sagar Pandey (PW 5) has been tendered but in his cross-examination he has stated that the was deputed in the Village since one week before the occurrence along with Deepa Singh (PW 7) and Hari Narayan Singh (PW 13). Ram Sagar Pandey (PW 5) has been tendered but in his cross-examination he has stated that the was deputed in the Village since one week before the occurrence along with Deepa Singh (PW 7) and Hari Narayan Singh (PW 13). He has further stated that on the date of occurrence 10-12 ploughs were engaged at the place of occurrence and on that day at about 6 a.m. in the morning he heard six rounds of firing and when he along with Magistrate and ASI went to the place of occurrence he found there was tension between two groups but persons of both the groups after seeing the police party fled away and thereafter he and his party went in the village on patrolling. Again on the same day at about 9 a.m. his party heard sound of firing and when it reached the place of occurrence it found that the fight was going on between two groups and firing was being made from both sides. To disperse the mob his party under the orders of Magistrate opened fire in the air and then members of both groups fled away and he found one man lying dead and one another was found injured. Deepa Singh (PW 7) has stated that on the day of occurrence he was deputed at village Bellao along with Magistrate Hari Narayan Singh and on that day in the morning he heard sound of firings and he and his party along with dafadar and Choukidar went to the place of occurrence and found that all the persons fled away and nobody could be apprehended. On the same day at about 9 a.m. police party again heard sound of firing when it was patrolling in the village and then police party went to the place of occurrence and found that ploughs were engaged in the field and two groups were fighting with each other. His party ordered them to stop fighting but members of both groups disobeyed the order and then under the orders of Magistrate his party opened fire in the air and thereafter the members of both groups dispersed and when his party went to the place of occurrence it found the dead body of Birendra Singh and Raj Ballav Singh was found lying injured. He has proved the report in the writing of the Magistrate and the signature which are marked as Ext.2 and Ext. He has proved the report in the writing of the Magistrate and the signature which are marked as Ext.2 and Ext. 1/3, respectively. He has stated that the report was sent to the officer-in-charge of Barbigha P.S. He has also stated that appellant Ram Padarath Pandey who was Sarpanch also put his signature on the report. In para 10 of his evidence he has stated that his party heard sound of fring and rushed towards the place of occurrence. Appellant Ram Padarath Pandey also rushed towards there. In para-15 of his evidence he has said that when after hearing the sound of firing at about 9 a.m. his party reached the place of occurrence he found 8-10 ploughs engaged in the place of occurrence and those ploughs belonged to Thikedars. In para-16 of his evidence he has stated that Bibi Sogra Waqf Estate had settled its lands with the Thikedars but some Bataidars were creating trouble on these lands and for this reason his party had been deputed in the village. He has further stated that on 10.9.77 some ploughs belonging to Thikedars were engaged in the land belonging to Estate and some women of Harijan community went there and lied in the ground in order to stop the ploughs and the Magistrate under compulsion had stopped the ploughing because apprehension of blood shedding had arisen. 10. Hari Narayan Prasad (PW 3) in his evidence has stated that on 12.9.77 he was deputed in village Bellao as a Magistrate for maintaining the law and order because some persons were claiming bataidari right on the land belonging to Bibi Sogra Waqf Estate and on 12.9.77 in the morning his party heard sound of 5-6 rounds of firing and at that time his party was camping in the 'Kutchery' of Bibi Sogra Waqf Estate and when his party proceeded towards the place from where it had heard the sound of firing, village Chaukidar came running to them and informed his party that there was apprehension of breach of peace and when his party reached the place of occurrence it found two groups in the stage of tension and thereafter his party started patrolling in the village. Again on the same day at about 9 a.m. when his party was patrolling in the village it heard sound of firing and when it reached the place of occurrence it found that ploughing was being made in the field where two groups were fighting with each other and both groups were armed with weapons. Thereafter his party found that one man after receiving fire arm injury had already fallen down and one man had been injured. His party then ordered the members of both the groups to leave the place but when they did not obey he ordered for firing in the air and thereafter members of both the groups fled away and nobody could be arrested. His party when reached the place of occurrence found that Birendra Singh had already died and Raj Ballav Singh was lying injured He has further stated that he then came back to Kutchery and prepared the report on which appellant Ram Padarath Pandey who was the Sarpanch, Deepa Singh (PW 7). Chaukidar Chano Manjhi and Mukhiya Bhagwa Mahto put their signatures. He has further stated that he recorded the statement of Chaukidar (Ext. A) and sent his report to police station. In para 12 of his evidence he has stated that on 10.9.77 also 10 ploughs belonging to appellants had gone to a field and some persons wanted to stop them. In para 13 of his evidence he has stated that on the land belonging to Bibi Sogra Waqf, Estate the ploughs of Thikedars had gone to plough. He has further clarified that he calls those persons as Thikedars who had taken the land on lease from the Estate. His further evidence is that when the ploughs of appellants were engaged in ploughing about 20-25 women went there and lied down in front of ploughs in order to stop ploughing and they were doing on the instigation of bataidars. He has further stated that co-accused Ramprit Singh and Ram Swarath Singh were Thikedars and members of prosecution party namely, Shiv Deo Singh (PW 1), Sumendra Singh (PW 3), Nago Singh (PW 12) and others were instigating the women for stopping the ploughs. He then submitted a report describing the prosecution party as goonda elements. He has further stated that co-accused Ramprit Singh and Ram Swarath Singh were Thikedars and members of prosecution party namely, Shiv Deo Singh (PW 1), Sumendra Singh (PW 3), Nago Singh (PW 12) and others were instigating the women for stopping the ploughs. He then submitted a report describing the prosecution party as goonda elements. So we find that from this set of witnesses who are quite independent witnesses and were deputed in the village to maintain law and order a week prior to the occurrence and were present in the village on the day of occurrence have given a quite different account of the occurrence. Their evidence supports the case of defence that the appellants were in possession of the land of plot No. 2744 and the prosecution party was creating disturbance in ploughing that land by the appellants. The further case of defence is that when their plough men namely, Shiv Balak Paswan and Barho Mahto were ploughing the lands of plot No. 2744 members of prosecution party went there and assaulted them on which residents of Musahar Toli to which their plough men belong came there and thereafter those residents assaulted the members of prosecution party. 11. Dr. PN. Jha (DW 1) in his evidence has stated that on 13.9.77 at 8.55 p.m. he examined appellant Shiv Balak Paswan and co-accused Barho Manjhi and had found one incised wound on the person of Shiv Balak Mahto and one incised wound and some bruises on the person of Barho Manjhi, Moinuddin (DW 2) has proved fardbeyan (Ext. E) of the counter case. Jagdish Singh (PW 2) has admitted that he had knowledge that injuries by sharp weapon had been shown on the persons of Barho Manjhi and Shiv Balak Paswan but he does not know how they received injuries. Similarly Ram Chandra Mahto (PW 4) has stated that only from one side assault was made but in para 47 of his evidence he has stated that he does not know how Barho Manjhi and Shiv Balak Paswan received injuries. The Court below has discarded the evidence on filing of FIR of counter case and injury reports and the evidence of DW 1 about the injuries on Barho Manjhi and Shiv Balak Paswan on the ground of delay. The Court below has discarded the evidence on filing of FIR of counter case and injury reports and the evidence of DW 1 about the injuries on Barho Manjhi and Shiv Balak Paswan on the ground of delay. If no inference is drawn from the filing of counter case and the injuries found by DW 1 on the persons of Barho Manhji and Shiv Balak Paswan, even then we find that genesis of occurrence as alleged by prosecution does not find any support and it stands falsified by the own evidence of prosecution witnesses, namely, PWs. 5, 7 and 13 who are independent witnesses, because their evidence clearly establishes that on the day of occurrence it were appellants whose ploughs were engaged in ploughing the land. Not only their evidence falsifies the case of prosecution that at the time of occurrence the prosecution party was engaged in ploughing the land but it further goes to the extent to establish that member s of prosecution party were creating disturbance in ploughing the land of occurrence by the appellants. About the manner of occurrence the prosecution has drawn the attention of almost all prosecution witnesses to the contradiction in their earlier statement and in their evidence. For example, defence has drawn the attention of PW 1 that he had not stated in his earlier statement the name of appellants Shambhu Pandey, Dharam Manjhi, Anandi Singh, Saho Singh. Jainandan Singh and Pradeep and had not stated before the police that appellant Rajo Singh had assaulted Raj Ballav Singh with saif and appellant Bijay Kumar assaulted Raj Ballav with lathi. The attention of Jagdish Singh (PW 2) has been drawn to the effect that he had not stated in his earlier statement that he was assaulted by appellant Pramod Prasad. He himself has admitted that in his earlier statement he had not stated that his brother Gulam Singh was assaulted by appellant Kameshwar with saif and by co-accused Barho Manjhi with lathi. Suggestion to PW 4 has been given that in his earlier statement he had not stated that appellant Rajo Singh assaulted deceased Raj Ballav Singh with saif and appellant Dharam Manjhi had assaulted deceased Raj Ballav Singh with bhala and he had not stated the name of appellants Shambhu Pandey, Anandi Manjhi, Saho Singh, Jainandan Singh and Pradeep. Suggestion to PW 4 has been given that in his earlier statement he had not stated that appellant Rajo Singh assaulted deceased Raj Ballav Singh with saif and appellant Dharam Manjhi had assaulted deceased Raj Ballav Singh with bhala and he had not stated the name of appellants Shambhu Pandey, Anandi Manjhi, Saho Singh, Jainandan Singh and Pradeep. Kailash Prasad (PW 8) in para 11 of his cross-examination has stated that in his earlier statement he had not stated that Jagdish Singh, Gulam Singh, Boran Manhji, Nago Singh, Raj Kumar Mahto, Rameshwar Mahto were also assaulted. Suggestion has been given to him that in his earlier statement he has stated that appellant Rajo Singh assaulted deceased Raj Ballav Singh with saif and co-accused Ram Swarath Singh with gransa. Similarly suggestion to Raj Kumar Mahto (PW 9) has been given that in his earlier statement he had not stated that Rajo Singh assaulted deceased Raj Ballav Singh with lathi. He himself has admitted that in his earlier statement he had not stated that co-accused Ram Swarath Singh assaulted the deceased with saif and appellant Gauri Singh assaulted deceased Raj Ballav Singh with Bhala. Suggestion to PW 11 has been given that in his earlier statement he had not stated that Rajo Singh assaulted deceased Raj Ballav Singh with lathi and he had not stated the name of appellant Baro Manjhi as one of the assailants of deceased Raj Ballav Singh. The defence has also drawn the attention of informant that he had not stated the names of Pramod Kumar as one of assailants of deceased Raj Ballav Singh. 12. The prosecution has not examined the I.O. on account of his death. The prosecution has not brought any thing on record to prove that the contradiction in the earlier statement of witnesses and in their evidence as suggested by the defence by drawing the attention of prosecution witnesses is without any basis. Besides this, we find that all the witnesses have given exactly the same description of the part played by each appellant whereas the fact is that some of its witnesses, namely, Sumendra Singh (PW-3) and Ram Chandra Mahto (PW 4) could not give the correct account of the clothes worn by the appellants when they were asked to describe the dress of the appellants present in Court at that time after turning about. In this view of the matter, it becomes very difficult to accept their evidence. So considering the entire evidence on record we find that case of prosecution is not supported by the evidence of its own independent witnesses, namely, PWs. 5, 7 and 13. The Court below has discarded their evidence on the ground that they have supported the appellants. We find no reason for arriving at such finding by the Court below. PWs 5, 7 and 13 are the witnesses produced on behalf of the prosecution. If their evidence does not support the case of prosecution it is the prosecution which has to suffer. Without any valid reason their evidence cannot be discarded. In the result, we find that the prosecution has not been able to prove the manner in which the occurrence is said to have taken place. The finding of the Court below holding the appellant guilty is based on the evidence of only those prosecution witnesses who are interested witnesses and all are inimical to appellants. The independent witnesses produced by the prosecution have not supported the case of prosecution and their evidence supports the case of defence that on the day of occurrence the appellants were in possession of the land where occurrence took place and from their evidence the finding of the Court below that appellants were aggressor is not supported. 13. In the result, these appeals are allowed. The judgment and order of the Court below convicting and sentencing the appellants are hereby set aside. The appellants who are on bail are discharged from the liability of their bail bond.