JUDGEMNT Lakshman Uraon, J-AII the three appellants have preferred this appeal against the judgment and order of conviction and sentence dated 17th December, 1990, passed by the learned 4th Additional Sessions Judge, Giridih, in Sessions Trial No. 49 of 1990, whereby, all of them have been convicted under Section 302/34 of the Indian Penal Code and sentenced 'to undergo rigorous imprisonment for life. Appellant no. 3 Md. Ashique has further been convicted under Section 323 of the Indian Penal Code but no separate sentence has been awarded against him under this count. 2. The prosecution case, as per the Fard-beyan of the informant Md. Dilshad Sheikh (Ext. 5), is that on 4th September, 1989, at about 8.00 A. M. at Village Gadi Shreerampur, Police Station-Mofassil, there was some quarrel in between the children of lltaf and his brother lliyas. Informant's brother Rishad (deceased) had intervened by scolding the children. At about 8.00 p.m. the informant along with Asgar (PW 6), Mansoor, Sahadat and Rishad (deceased) was constructing the staircase of the house by lightening petromax. In the meantime, Ashique Mian, Naseem Mian, Abbas Mian, Iitaf Mian, Nishar Mian, armed with Lathi, Bhala and Ballam reached there, abusing the informant and others. Appellant IItaf ordered Rishad to come out as they will return back after Gommitting his murder. Rishad asked them as to why they have become irritated regarding the quarrel of the children. Then IItaf, who had Lathi in his hand, gave a Lathi blow on the head of Rishad. On being injured, Rishad fell down. When he fell down, then Naseem gave a Bhala blow on the person of Rishad, which caused injury on the finger of his left hand. Thereafter, he (Rishad) was assaulted indiscriminately by Nisar, Ashique and Abbas with Lathi, as a result of which he (Rishad) became unconscious. The informant tried to provide water to his brother. Ashique assaulted him with Lathi, causing injury on his left hand and the water fell down. When Asgar rushed to save him, then he was also assaulted by Naseem with Lathi. On Hulla the neighbours assembled. Then all the assailants fled away towards their homes. Rishad was struggling there in a pool of blood. He was in unconscious condition. He was taken on a Tanga. When Asgar rushed to save him, then he was also assaulted by Naseem with Lathi. On Hulla the neighbours assembled. Then all the assailants fled away towards their homes. Rishad was struggling there in a pool of blood. He was in unconscious condition. He was taken on a Tanga. The Fardbeyan of the informant was recorded by B.P.Mishra, S.I., Mofassil Police Station on the same day at 10.30 p.m. at the Police Station. 3. The learned court below acquitted accused Md. Abbas and Md. Nishar, who were also charged under Section 302:/149 of the Indian Penal Code along with tnese three appellants. The alleged OCCUrt'l3nCe took place at 8.00 p.m. in the night when the informant and four others, namely, Asgar (PW 6), Mansoor, Sahadat and Rishad (deceased) were at their home, constructing staircase of their house. Petrorr.ax was burning there. The informant claimed to have identified these appellants when they reached there, armed with Lathi, Bhala and Ballam. As per the Fard-beyan (Ext. 5), Rishad was firstly given a Lathi blow by IItaf on his head. When Rishad fell down, then Naseem Mian gave a Bhala blow, which injured his left hand's finger. Thereafter, others assaulted him indiscriminately with Lathi. The informant also claimed that he was given Lathi blow on his left hand by accused Ashique whereas Asgar was given Lathi blow by Naseem. 4. PW 1 Dr. Suresh Brahmchari has examined the informant Md. Dilshad on 5.9.1989 at 11.30 a.m. and found a linear abrasion 1" in length on the dorsum of the left forearm lying in the line of forearm with surrounding swelling 3" x 2", caused within 24 hours of his examination. The injury report is Ext. 1. PW 2 Dr. K.D.P. Mal:1aseth has conducted the post-mortem examination on the dead body of Md. Rishad Seikh on 5.9.1989 at 4.30 a.m. and found the following ante mortem injuries on his person: (i) Haematoma on forehead on left side including upper eyelid 4" x 4" (ii) Abrasion on tip of left little finger 1/16" x 1/16" (iii) Sharp cut wound on the centre of head 1/2" x 1/2" x bone deep On dissection, left frontal bone and left parietal bone were found fractured with haematoma in 4" x 4" area below the fracture and laceration of brain matter in 3" x 3" area. The cause of death was head injury and shock, caused by blunt substance, due to injury no.1 and sharp cut wound injury no.3. The doctor (P.W.2) proved the postmortem report (Ext.2), prepared in his pen and signature. This Medical Expert has opined that injury no.1 is possible by hard and blunt weapon. He has further deposed that Bhala is a piercing weapon. The injury by Bhala may be penetrating or piercing. Injury no.3 is neither penetrating nor piercing. The assailant assaulted the injured from left side. Both the edges of a Bhala are not parallel. Bhala asault may cause straight injury. He did not find the hair cut in injury no.3. Injury no.2 is apparently simple. 5. In the Fard-beyan (Ext.5) the informant has not alleged against anyone giving Bhala blow to Rishad on the middle of the head, rather he was given only Lathi blow by Altaf, causing injury on his head and when he fell down then Naseem gave a Bhala blow which injured only the left hand's finger. This statement (Ext.5) does not get support by the medical evidence of PW 2 who did not find Lathi blow injury on the head of the deceased Md. Rishad Sheikh, rather he found injury no.1 haematoma on forehead left side including upper eyelid 4" x 4". This injury is corroborated with the Lathi assault, given by IItaf on the head of Md. Rishad. When Rishad fell down then Bhala blow was given by Naseem, injuring his left hand's finger. Thus, injury no. 2 i.e. abrasion on tip of the left little finger measuring 1/16" x 1/16" was inflicted on the body of Md. Rishad. The third injury i.e. sharp cut wound on the centre of the head measuring 1/2" x 1/2" x bone deep has not been alleged in the Fard-beyan at the early stage of the information, given by the informant Md. Dilshad Sheikh. 6. Now I consider the evidence of PW 7 Md. Oilshad (informant), who has deposed that in the morning of the alleged date of occurrence, son of IItaf and son of lliyas had picked up quarrel which was intervened by deceased Rishad. Due to that reason at about 8.00 p.m. all these appellants along with two others Md. Abbas and Md. Nishar, who have been acquitted, reached there where the informant and other were at the worksite constructing the staircase of their verandah. Due to that reason at about 8.00 p.m. all these appellants along with two others Md. Abbas and Md. Nishar, who have been acquitted, reached there where the informant and other were at the worksite constructing the staircase of their verandah. All the assailants gave a Lalkar to Rishad to come out as they would kill him. Rishad was sitting at the worksite there and the informant, Asgar, Shamsoor were doing the work of manson (sic-mason ?) at their home. Rishad asked the assailants as to why they are irritated due to the quarrel among the children. Then IItaf gave a Lathi blow, causing injury above his left eye brow. Rishad on being assaulted fell down. Thereafter, when he tried to rise, Naseem assaulted him with Bhala on his head. Rishad tried to save himself with hand which resulted injury on his left hand's little finger tip as also on the head. He has further deposed that appellant Ashique pressed the chest of Rishad, which resulted bleeding from his mouth. The informant was also given a Lathi blow when he was carrying water in a Lota, by Ashique. The injury on the left hand of the informant is supported by the medical evidence of PW 1 (Ext. 1). Thereafter, Nasir again gave a Lathi blow to Asgar, who had tried to intervene. The injured Rishad was taken to the hospital, where he died in the morning at about 4.00 a.m. The informant (PW 7) in his evidence at paragraph no. 11 has deposed that he along with three others was constructing staircase of the house of Sultan and it was moon-lit night and bulb was also burning there. When the electricity was off, then they had lightened the petromax for doing the work. 7. PW 9 Nageshwar Prasad Yadav (Investigating Officer) has found the place of occurrence to be the pitch road of Gadi Shreerampur, Purvanagar in front of the house of Rishad Sheikh (deceased). The alleged assault was made between the houses of Aziz Sheikh and the deceased Rishad Sheikh. He has found blood stained soil at that place, which he seized in presence of the witnesses and prepared seizure list in his pen and signature (Ext.8). He having found injury on the person of Shamshul, sent him to the hospital by issuing injury slip. He has found blood stained soil at that place, which he seized in presence of the witnesses and prepared seizure list in his pen and signature (Ext.8). He having found injury on the person of Shamshul, sent him to the hospital by issuing injury slip. When he received O.D.slip from the hospital regarding the death of injured Rishad, then he went to Sadar Hospital and prepared inquest report (ExtA). He sent the dead body for postmortem examination. He has deposed that he did not find bricks, sand, cement or other materials for constructing the staircase at the place of occurrence or nearby that place. When he went there, he found a lantern burning. He did not seize the same. 8. In paragraph no.19, the I.O. has stated that the informant Dilshad (PW 7) had not stated before him that he along with others was working at that time and Rishad was sitting there. He had not stated that IItaf gave a Lathi blow, causing injury on the left eye brow of Rishad. He had also not stated that when Rishad tried to rise, then Naseem gave a Bhala blow. He had also not stated that Ashique pressed the chest of Rishad. 9. The evidence of the informant is contradicted by the Investigating Officer (PW 9) in the manner of the alleged Bhala assault on the middle of the head of Rishad, assaulted by Md. Naseem. On the other hand, Bhala injury was found only on the tip of the middle finger. As per the evidence of the informant in his Fard-beyan Md. IItaf gave a Lathi blow on the head of Rishad, who fell down and thereafter, all the assailants assaulted indiscriminately. The doctor did not find Lathi blow injury on the middle of the head, which is the injury caused by sharp cutting weapon like Bhala. These evidences, as considered by me, themselves are contradictory to each other and creates doubt in my mind as to how Rishad sustained injury on his head by whose assault with what weapon. 10. At the time when the informant along with Asgar (PW 6), Mansoor, Sahadat and deceased Rishad were in verandah, where Rishad was sitting and others were working, out of whom Asgar has been examined as PW 6, who must be the eye witness of the alleged occurrence. 10. At the time when the informant along with Asgar (PW 6), Mansoor, Sahadat and deceased Rishad were in verandah, where Rishad was sitting and others were working, out of whom Asgar has been examined as PW 6, who must be the eye witness of the alleged occurrence. He has deposed that at about 8.00 p.m. the alleged occurrence took place when he and others were outside of home working there, which is at a distance of 5 ft. away from his house. All the accused reached there abusing Rishad. When Rishad came out and asked as to why they were irritated on the quarrel of children, then IItaf gave a Lathi blow, causing injury on the head of Rishad. When Rishad fell down, then Naseem gave a Bhala blow, which injured the left little finger and also on his head. Thus, this witness has not stated that when Rishad was trying to rise, then he was given Bha/a blow. On the other hand, when Rishad fell down flat then he was assaulted indiscriminately including Bhala assault by Naseem on his head. In such situation, the Bhala assault on the middle of the head of Rishad is not possible. This witness (PW 6) has also improved his statement in course of his evidence that Ashique also pressed the chest of Rishad, causing oozing of blood from his mouth. This eye witness (PW 6) has stated that there was no assault on the person of Rishad on the verandah, rather Rishad was assaulted on the road. The informant was assaulted on the verandah and this witness was also assaulted on the verandah, as deposed in paragraph no. 11. If the informant (PW 7) Md. Dilshad Seikh and this eye witness Asgar (PW 6) were assaulted on the veranqah and Rishad was assaulted on the road, then also the evidence of these witnesses that the informant had gone to give water to Rishad where he was assaulted, becomes doubtful, because Rishad was assaulted on the road and the assailants must be there on the road. Similar is the case when Asgar (PW 6) was going to intervene the assault, then he was assaulted by the assailants. But he has deposed that he was assaulted on the verandah, then also it creates doubt in my mind as to whether the assailants were on the verandah or were of the road, assaulting Rishad. 11. Similar is the case when Asgar (PW 6) was going to intervene the assault, then he was assaulted by the assailants. But he has deposed that he was assaulted on the verandah, then also it creates doubt in my mind as to whether the assailants were on the verandah or were of the road, assaulting Rishad. 11. PW 9, the Investigating Officer, in paragraph no. 18 of his evidence has stated that Asgar (PW 6) had not stated before him that Naseem assaulted Rishad on his head. He had also not stated that Nisar gave a Lathi blow on the left elbow and Abbas gave a Lathi blow on his left arm and hand. He had also not stated that Ashique pressed the chest of Rishad, resulting oozing out of blood from his mouth. Thus, the evidence of this witness Asgar (PW 6), who is eye witness, is also contradictory to the statement, given by him before the Investigating Officer in course of investigation. 12. PW 3 Sk. Salim has stated that the Investigating Officer seized the blood stained soil in his presence and prepared seizure list on which he signed (Ext.3). PW 4 Md. Hafiz is also a seizure list witness on which he has signed (Ext.3/A). At about 8.00 p.m. on 4.9.1989 he 'came at his door after taking meal and saw IItaf, Naseem, Nisar and Ashique assaulting Rishad. He raised Hulla and then accused persons fled away, brandishing Lath;, which caused injury on his left leg. But the Investigating Officer (PW 9) in paragraph no.16 of his evidence has stated that this witness Md. Hafiz (PW 4) had not given any statement before him that when. he came out after taking meal and reached to the door, then saw \ltaf, Naseem, Nisar and Ashique assaulting Rishad (deceased). He had also not stated before him that the others assaulted Rishad with Lathi at verandah. They were also brandishing Lathi resulting injury on the left leg of this witness Md. Hafiz (PW 4). He has also not supported the alleged occurrence as an eye witness rather he is simply a witness on the seizure list. This witness (PW 4) has further deposed that when he raised Hulla, then all the assailants fled away. He has not mentioned as to who were there present at the place of the occurrence and witnessed the alleged occurrence. This witness (PW 4) has further deposed that when he raised Hulla, then all the assailants fled away. He has not mentioned as to who were there present at the place of the occurrence and witnessed the alleged occurrence. He did not find petromax burning there, rather petromax had fallen down and it was quite dark. 13. On the other hand, PW 5 Sk. Shamsoor has deposed that there were five assailants. Accused IItaf assaulted with Lathi, causing injury above the left eye brow on the person of Rishad. Appellant Naseem gave a Bhala blow, which injured Rishad on his left little finger tip. Thereafter, the Bhala blow was not repeated by appellant Naseem to cause any injury to Rishad. 14. The doctor PW 2 has found injury nO.2 to be abrasion on the tip of the little finger measuring 1/16" x 1/16". Caused by sharp cutting instrument, such as, Bhala. The Bhala assault is injury nO.3 on the person of Rishad by sharp cutting instrument and as such, Bhala injury on the middle of the head of Rishad could not be corroborated. Learned counsel for the appellants on this point has relied upon cases, reported in A.I.R. 1998 (SC) page 1759 (Ram Singh & Ors. VS. State of Haryana) and (1999) SCC (Cr.) 135 (Bhola Singh VS. State of Punjab) and submitted that there is contradictory statements regarding the assault made by the appellants, causing injury on the person of Rishad, which could not get support from the medical evidence. It was also submitted that the eye witnesses have developed the prosecution story in course of their evidence in court, which they had not stated before the Investigating Officer. 15. PW 8 Md. Karim is a witness on the inquest report on which he has signed (ExtA). 16. PW 6 Asgar Sheikh, who claims himself to be the eye witness and was standing at a distance of 5ft. from the place of occurrence, has tried to corroborate the prosecution case in his examination-in-chief but he could identify in the dock only accused Ashique, Abbas and Nisar. He could not identify the other appellants (Para-4). He has further deposed that due to his poor eye sight, since his childhood, he is unable to see beyond 5 ft. (Para 5 & 15). He could not identify the other appellants (Para-4). He has further deposed that due to his poor eye sight, since his childhood, he is unable to see beyond 5 ft. (Para 5 & 15). This witness had also not stated before the Investigating Officer (PW 9) that he was also doing the work of plaster, rather he was doing the work in his house at the time of the alleged occurrence. He had not stated that accused Naseem assaulted Rishad on the head. He had also not stated that Nisar assaulted him with Lathi on his left elbow and accused Ashique with Lathi on the left arm. He had also not stated before the I.O. that accused Ashique pressed the chest of Rishad and as a result of which blood oozed out from his mouth. Thus, this eye witness has also developed the prosecution story in course of his evidence in court, which he had not stated before the I.O. 17. Learned counsel for the appellant has submitted that the alleged occurrence took place at 8.00 p.m. on the road, which is surrounded by the houses of other persons. The informant in his Fardbeyan (ExtA) has mentioned that on Hulla many persons rushed to the place of occurrence. PW 4 Md. Hafiz has also deposed in paragraph no.4 of his evidence that on his Hulla about 40 villagers assembled there and the accused fled away .towards east. He has further deposed that at the time of the alleged assault it was quite dark as petromax was not burning rather it had fallen down there (Para 5 & 6). PW 5 Sk. Samsoor has also stated that on Hulla raised by Md. Hafiz about 40 to 50 persons assembled at the place of occurrence (Para 6). The informant (PW 7) has also deposed that on Hulla many villagers had reached at the place of occurrence and then the accused persons fled away to their homes. Learned counsel for the appellants has submitted that at the village, the independent witnesses were available but they have not been examined by the prosecution and has relied on a case, reported in 1999 (2) East. Cr. Cases page 516 (Arjun Sah & 11 ors. vs. State of Bihar) 18. In the present case, PW 6 Asgar along with Mansoor, Sahadat, Rishad (deceased) and the informant Dilshad (PW 7) was working there by burning petromax. Cr. Cases page 516 (Arjun Sah & 11 ors. vs. State of Bihar) 18. In the present case, PW 6 Asgar along with Mansoor, Sahadat, Rishad (deceased) and the informant Dilshad (PW 7) was working there by burning petromax. PW 6 Asgar has deposed that by the time when assault took place, it was dark and no petromax was burning. Moreover, Asgar (PW 6) has got a poor eye sight as admitted by him in course of evidence in court, as he can not see beyond 5 ft. The other independent witnesses, namely, Mansoor and Sahadat who were also there and working in construction of the staircase, have not been examined. Moreover, the other independent village witnesses who assembled there and saw the accused fleeing away, have also not been examined by the prosecution. At the time of the alleged assault, the informant has claimed that while he was at his verandah and saw the alleged assault on Rishad, then he was going with water in a Lata but he was assaulted on his hand, resulting falling of water. This shows that he was not on the road where Rishad was assaulted rather he was on the verandah. I have already stated above that another eye witness Asgar has got poor eye sight and as such, not reliable regarding the manner of the alleged occurrence. 19. In the present case, I find that there is improvement in the evidence of the witnesses in course of trial in court which they had not stated before the Investigating Officer and their statements are full of contradictions, as discussed above by me in previous paragraphs. Moreover the ocular evidence regarding assault on the person of the deceased Rishad either with Bhala or with Lathi on his middle scalp has also been contradicted by the medical evidence. This is quite possible that at that time, as deposed by PW 6, it was quite dark and no petromax was burning and as such the assailants could not be identified. This is quite possible that at that time, as deposed by PW 6, it was quite dark and no petromax was burning and as such the assailants could not be identified. The manner of the alleged assault that Rishad was firstly assaulted with Lathi by IItaf causing injury above his left eye brow and the Bhala assault was warded off by him, which caused injury on his left little finger, shows that the doctor, who found injury no.3 on the middle of the scalp was not piercing or penetrating, which can be caused by Bha/a rather, injury no.3 was sharp cut wound on the centre of the head measuring 1/2" x 1/2" x bone deep. This also could not be corroborated by the prosecution. There were so many villagers including the informant and PW 6 and others, namely, Mansoor and Sahadat but they never tried to rush to the road where Rishad was assaulted. On the other hand, PW 6 and PW 7 have stated that Rishad was sitting on the verandah where work was going on. The accused went there and assaulted him. This means that Rishad was assaulted on the verandah itself but the Investigating Officer found blood stained soil on the road and the prosecution witnesses have also contradicted about the place of occurrence, as whether Rishad was assaulted on the verandah or on the road whereas the Investigating Officer has found blood stained soil on the Pucca Pitch road. Thus, the place of occurrence has also been contradicted by the ocular evidence of PWs 6 and 7. 20. Learned counsel for the appellants while arguing has also submitted that there was triffle matter of the alleged occurrence, which was the quarrel of children. That genesis has also not been proved as to when and where the quarrel amongst the children took place. The accused went there to the house of Rishad and called him by name to come out as they would assault him till death and then only they would leave the place. Even then, neither Rishad nor the informant or other persons, who were working at the place of occurrence, tried to raise any hue and cry or to protect him. There was no occasion to run and go on the road where Rishad was assaulted, although the road is just within a distance of 5 fl. from the. Even then, neither Rishad nor the informant or other persons, who were working at the place of occurrence, tried to raise any hue and cry or to protect him. There was no occasion to run and go on the road where Rishad was assaulted, although the road is just within a distance of 5 fl. from the. house of the informant and others. Thus, I find that the prosecution case is full of doubt where the appellants had common intention to cause the death of Rishad by assaulting him only due to the reason that he had intervened the quarrel of the children on that day itself. Two accused Md. Abbas and Md. Nisar have been acquitted by the learned court below, who have also been charged under Section 302/149 of the Indian Penal Code. It was also argued that the learned court below has convicted these appellants under Section 302/34 of the Indian Penal Code. without any evidence of their common intention or in furtherance of their intention to assault Rishad to cause his death and have been convicted under Section 302/34 of the Indian Penal Code by the learned court below and has relied upon a case, reported in 2002(3) J.L.J.R. (SC) 53 (Mathura Yadav alias Mathura Mahata & Ors. VS. State of Bihar) and A.I.R. 1989 (SC) 1593 (Rambilas Singh & Ors. VS. State of Bihar). 21. In view of my above considered view, I find that the finding of conviction and sentence, passed against these appellants by the learned court below can not be sustained. 22. In the result this criminal appeal is allowed and the judgment and order of conviction and sentence passed by the learned court below are hereby set aside. As all the appellants are on bail, they are discharged from the liabilities of their bail bonds. Vishnudeo Narayan, J.-I agree.