Judgment Prabhat Kumar Sinha and Braj Nandan Prasad Singh JJ. 1. At the outset it may be recorded that this Appeal was filed by three appellants including Jag Dayal Singh but this court having been informed about his death, a report from the Superintendent of Police, Rohtas was called and as per the report of the Superintendent of Police, Rohtas, having confirmed his death, this appeal abated as against appellant Jag Dayal Singh. Out of the rest two appellants, Ishwar Dayal Singh has been convicted under Section 304 Part II of the Indian Penal Code (hereinafter referred to as the Code) and has been sentenced to undergo rigorous imprisonment for ten years. Appellant Ganga Singh has been convicted under section 326 of the Code and has been sentenced to undergo for the same period of rigorous imprisonment. 2. First information report dated 28.9.1984 was registered on the statement of Sidha Nath Singh (P.W.4) who had stated that on the same day at about 7.00 A.M. his father when had come back after easing himself in the field, Jag Dayal Singh armed with Farsa asked him to file an affidavit in the court in the case in which father of informant was a witness. On his refusal to do so Jag Dayal Singh abused him and called his people at which appellant Ishwar Dayal Singh, with lathi, appellant Ganga Singh with Farsa and two others with lathi and Faruhi came and on order of Jag Dayal Singh they assaulted him. Jag Dayal Singh himself assaulted his father with Farsa which hit his right hand and appellant Ganga Singh gave a Farsa blow which hit the finger of his left hand whereas appellant Ishwar Dayal Singh hit him on his head with lathi. Father of the informant having fallen down, two other accused, namely, Dudheshwar Singh and Kesha Devi, who did not face trial also assaulted him with lathi and Faruhi. Brother of the informant, also named Ishwar Dayal Singh (P.W.1), came running from the house on hulla with lathi along with his wife Manorma Devi (P.W.2) and when he wanted to chase away the accused, they also attacked him in which process the accused side also suffered some injuries. The father at about 2.00 P.M. expired whereafter somehow the informant (with his brother) came to the Police Station. The father at about 2.00 P.M. expired whereafter somehow the informant (with his brother) came to the Police Station. It has claimed that the tiles of the roof were also damaged by the accused. 3. Out of the witnesses examined by the prosecution, P.W.6, Hari Shankar Singh, is a formal witness whereas P.W.7, Syed Ali Kamber is the Investigating Officer and P.W.5, Dr. R.S.Tiwary, had conducted the post mortem upon the dead body. P.Ws.1 to 4 have claimed to be the eye-witnesses, Vishwa Nath Singh (P.W.3) being another brother of the informant. 4. The defence of the appellant, in the trial court, was that young daughter of the deceased was married to a middle aged man which was opposed to by the accused persons for which reason the informant side held a grudge against them and, therefore, falsely implicated them. From the suggestions thrown to the witnesses it will also appear that the defence has claimed that none of the witnesses knew where, when and how the deceased was assaulted and killed but they have woven out a story against the appellants. 5. It has been argued that, as a matter of fact, the place of occurrence was some other place which was evident from the evidences on the record including that of the Investigating Police Officer. With some contradictions, as was pointed out, the four eye-witnesses had said that the appellant and the accused so named in the first information report had assaulted the deceased. These submissions may now be examined. P.W.1 in paragraphs 9 and 12 of deposition said that when he came out he saw blood on the body of his father and that blood had fallen at the place of occurrence also, including in the Gosala which were shown to the Investigating Police Officer. P.W.2 (paragraphs 7 and 9) had said that blood was oozing out from the hand as well from the head which also had fallen down, and after assault they had kept father on the Chabutra of their Gosala, where also blood had fallen down. Likewise P.W.3 had claimed that Ishwar Dayal Singh had assaulted on head with lathi at which her father fell down, as also that the blood had fallen at the place of occurrence and on Chabutra, which was seen by the Investigating Police Officer. Likewise P.W.3 had claimed that Ishwar Dayal Singh had assaulted on head with lathi at which her father fell down, as also that the blood had fallen at the place of occurrence and on Chabutra, which was seen by the Investigating Police Officer. Likewise P.W.4 claimed that when Ishwar Dayal Singh had assaulted the deceased on head, he fell down and blood started coming out. He also said that that blood had fallen down at the place of occurrence which was shown to the Investigating Police Officer. This witness also claimed that when the injured was taken to the Chabutra, in the way, as also on the Chabutra, blood has dropped down which was shown to the Investigating Police Officer. 6. However, P.W.7, the Investigating Police Officer, in his evidence, (Paragraph 7) has stated that he did not find any blood either in the gall near Gosala where occurrence was said to have taken place, inside the Gosala or at the Chabutra. This finding of Investigating Police Officer, as per learned counsel for the appellants, completely belies the story of the prosecution about the manner of assault upon the deceased and the claim of those eye-witnesses that blood had fallen down on earth, in Gosala as also on Chabutra. 7. It was also pointed out that P.W.1 had claimed to be the eye-witness of the occurrence and in cross-examination he denied that he had told the police that when he had come out of the house he had seen his father fallen down (after assault). This was verified from the P.W.7 who said that Ishwar Dayal Singh had told that when he had come out of the house he had seen his father down on the ground. 8. Likewise P.W.2 in paragraph 6 of her deposition denied that she had told the Police that when she came out of the house she saw the victim fallen down and blood oozing out from his body. She also denied that she had not told the Police that appellant Ganga Singh and Ishwar Dayal Singh as well Jagdayal Singh had also assaulted her father-in-law. When confronted with her statement, P.W.7 admitted (paragraph 9) that she had told that when she came out of the house she had seen the deceased fallen on the ground, blood oozing out from his body and that she had not named the aforesaid three as the assailants. When confronted with her statement, P.W.7 admitted (paragraph 9) that she had told that when she came out of the house she had seen the deceased fallen on the ground, blood oozing out from his body and that she had not named the aforesaid three as the assailants. It may also be noted that in the first information report it has been claimed that both P.Ws 1 and 2 had come together on hulla from inside the house. P.W.7 thus, confirmed that Manorma Devi had not named Ganga Singh, Ishwar Dayal Singh and Jagdayal Singh as assailants of the victim. Therefore, in so far as the actual occurrence is concerned by these two witnesses is not free from doubts. 9. In so far as assault by Ishwar Dayal Singh by lathi on the head of the deceased is concerned, attention has been drawn towards evidence of P.W.3. The clear case of the prosecution is that the deceased was assaulted with Farsa by Jagdayal Singh and Ganga Singh. P.W.3 has said in his evidence that after giving order Jagdayal Singh had assaulted on the right hand of his father with Farsa and Ganga Singh had assaulted him on left hand with Farsa and Ishwar Dayal Singh assaulted him on his head with lathi. However, this witness in course of cross-examination (Paragraph 4) had admitted that he had told the Police that appellant Ishwar Dayal Singh and Ganga Sngh had assaulted his father with Farsa. Since he admitted that he had told the Police that Ishwar Dayal Singh had assaulted with Farsa, it contradicts his evidence in the court. 10. From the evidence of witnesses it will appear that many persons had their houses quite nearby. P.W.1 has said in his evidence that when accused Jagdayal Singh was at the place of occurrence, five to six persons from the village had come there. P.W.2 also admitted that the place of occurrence was the gali contiguous to their Gosala and there were houses of the people on the both sides of the gali. P.W.3 in his evidence said that when his father had fallen down, hundreds of people of the village had assembled there but none of them had chased the assailants. 11. P.W.2 also admitted that the place of occurrence was the gali contiguous to their Gosala and there were houses of the people on the both sides of the gali. P.W.3 in his evidence said that when his father had fallen down, hundreds of people of the village had assembled there but none of them had chased the assailants. 11. It was pointed out that P.W.1 had claimed that after some verbal duel Jagdayal Singh had first fled away to call his family members and again he came back from the west whereafter the assault had taken place, but this story had not been told by any other witness that he had first fled away from the place of occurrence and then reappeared again with family members, rather the case is that he had called his accomplices. 12. The arguments was that when so many persons lived nearby and when the verbal duel and assault had taken sufficient time and from the very beginning, according to the eye-witnesses, they had raised hulla, the prosecution has failed to examine any such independent witness. Non-examination of independent witness will not otherwise affect the prosecution case if the evidence of interested witnesses is acceptable. But when infirmity including serious infirmities are found in their evidence, then non-examination of independent witness, who admittedly had reached the place of occurrence, will invite adverse inference. 13. Learned counsel submitted that on other ground also it will appear that the witnesses had not given a correct version of the occurrence in their evidences relating to the breaking of the tiles of the roof. P.W.1 had said that there were three rooms in their house and miscreants had broken the tiles of the roof of all those rooms. P.W.2 claimed that it were only the tiles of Gosala that were broken. P.W.3 still claimed that half of the tiles of only one room were broken and P.W.4 said that while fleeing away they had broken tiles of the western roof. Witnesses 3 and 4 also claimed that they had shown broken tiles to the Police Officer. However, P.W.7 in his evidence found that only some tiles of roof were broken which were on the western corner of the Gosala. 14. Now, the evidence about assault may be examined in the light of the finding of P.W.5, the doctor, who had conducted the autopsy. However, P.W.7 in his evidence found that only some tiles of roof were broken which were on the western corner of the Gosala. 14. Now, the evidence about assault may be examined in the light of the finding of P.W.5, the doctor, who had conducted the autopsy. The doctor, on the dead body, which he had examined on the next day at 12.15 P.M., had found following injuries. "(i) Fracture of the proximal phalanx of index and middle finger of left hand. (ii) Incised wound over the palmer aspect of the left index finger 1" & ½" x ¼" x skin deep. (iii) Swelling 3" x 2" over the dorsum of left hand. (iv) Incised would ½ x ½" x skin deep over the dorsum of right hand. (v) Swelling over dorsum of right had 3" x 2". (vi) Fracture of proximal phalanx of right middle finger. (vii) Bruise with swelling on the left parietal region extending upto the left temporal regions, 4" x 4". On dissection, there was fracture of left parietal bone, subdural haematoma about ¼ lbs. was present on the left side, and the overlying meninges, congested. The underlying brain substance was congested and lacerated. (viii) Multiple bruises about 5 to 6 in number were present on back 3" x ½" each." 15. Doctor mainly found injury no. (viii) to be responsible for death which injury was on the left parietal region on the head, extending up to left temporal region, dissection of which had revealed fracture of the left parietal bone. 16. Ganga Singh, the appellant, has been convicted under section 326 of the Code. He is said to have assaulted with Farsa which could cause the incised wound. The doctor had tound only two incised wounds upon the deceased, one over the palmer aspect of the left index finger which was skin deep and the other over the dorsum of right hand, also skin deep. These injuries, by their nature, cannot be said to be grievous injuries. Doctor, no doubt, he had found fracture in the right middle finger and fracture also in the middle finger of the left hand but those two injuries, which were separate from injuries no. 2 and 4 were found to have been caused by hard and blunt substance. For this reason accused Ganga Singh could not have been convicted under Section 326 of the Code. 17. 2 and 4 were found to have been caused by hard and blunt substance. For this reason accused Ganga Singh could not have been convicted under Section 326 of the Code. 17. Ganga Singh also could not have been convicted for the offence he is alleged to have committed, that is, for having assaulted by a sharp cutting weapon. It has come in the evidence that the two accused with Farsa and Ishwar Dayal Singh with lathi had given only one blow, each. The question asked under section 313 of the Code of Criminal Procedure was that (Question no. 2) "you had so much assaulted Yadunandan Singh, the deceased, with lathi that he had died." No question was asked that he had caused any injury with Farsa, If any specific circumstance as obtaining in the evidence is not asked under section 313 of the Code of Criminal Procedure, that part of the evidence has to be excluded from consideration. For this, decision of the Apex Court in the case of Sharad Birdhi Chand Sharda V/s. State of Maharashtra; A.I.R. 1984 S.C. 1622, and of this Court in the case of Fateh Mian V/s. State of Bihar; 1998 (2) P.L.J.R. 421 may be seen. 18. In so far as appellant Ishwar Dayal Singh is concerned, there are many infirmities in the prosecution case about the manner of assault as well the place of occurrence. One eye-witness had admitted that he had told the Police that Ishwar Dayal Singh had assaulted with Farsa. Non-finding of any blood mark at the alleged place of occurrence, though blood at various places was claimed by the prosecution witnesses, causes doubts about the place of occurrence. In the circumstances of the case, non-examination of any witness other than family members of the deceased also invites adverse inference against the prosecution case. P.W.4 also had said that at the time of occurrence the people living on the both sides of the Gali had arrived there. 19. In view of the circumstances discussed above, we find that the accused persons deserve benefit of doubt. That being so, this appeal is allowed and the convictions and sentences as in the judgment of the learned lower court are hereby set aside. The appellants are held not guilty of the offences charged with and are ordered to be acquitted. 19. In view of the circumstances discussed above, we find that the accused persons deserve benefit of doubt. That being so, this appeal is allowed and the convictions and sentences as in the judgment of the learned lower court are hereby set aside. The appellants are held not guilty of the offences charged with and are ordered to be acquitted. Since the two appellants on whose behalf appeal was argued, are on bail, they are released of the liabilities of their bail bonds.